United States v. Sylvestre

78 F.4th 28

UNITED STATES of America, Appellee, v. Elvins SYLVESTRE, Defendant, Appellant.

No. 22-1057

United States Court of Appeals, First Circuit

August 15, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Mark G. Mastroianni, U.S. District Judge]

William J. O'Neil for appellant.

Karen L. Eisenstadt, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.

Before Kayatta, Lynch, and Thompson, Circuit Judges.

KAYATTA, Circuit Judge.

Elvins Sylvestre was convicted after a jury trial of various firearm and controlled substance offenses. He challenges the district court's denial of a motion to suppress evidence gathered pursuant to a search warrant, the denial of a motion for judgment of acquittal on gun possession charges, and the reasonableness of his ultimate sentence. We conclude that none of his challenges have merit. Our reasoning follows.

I.

A.

In 2019, Pittsfield officers received reports of drug sales by Sylvestre out of 140 Wahconah Street, a location at which police had encountered Sylvestre in responding to property damage and animal control complaints. Some of this information came from a confidential informant ("CI"). CI reported buying cocaine from Sylvestre, describing in detail both Sylvestre and his methods of selling drugs out of 140 Wahconah Street. The police then arranged for seven controlled buys of crack cocaine by CI. We elaborate below on the events of these controlled buys where pertinent to our analysis, but in general, CI was given cash and then returned with drugs that CI said were obtained from Sylvestre or his associates.

Based on CI's information and the controlled buys, as described in greater detail in a supporting affidavit, Pittsfield police obtained a warrant to search 140 Wahconah Street and its occupants for drugs, paraphernalia, cash, firearms, and records. When police executed the warrant, Sylvestre opened the door initially and then attempted to close it; however, the officers were able to gain entry. One officer grabbed Sylvestre's clothes and held on as Sylvestre attempted to move further into the building. Sylvestre was eventually knocked to the ground a few feet away from a cabinet drawer in which a gun, together with prescriptions bearing only Sylvestre's name, were later discovered. Police found three other individuals in the building. Police also found the following items in different locations on the first floor of the building: ammunition, a cable bill for 140 Wahconah Street bearing Sylvestre's name, cocaine, heroin, drug packaging materials, and a document bearing the name of one of the other individuals found at the address.

B.

A grand jury returned an indictment charging Sylvestre with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) (count 1); possession with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2 (counts 2 and 3); and possession of a firearm in furtherance of drug trafficking crimes, in violation of 18 U.S.C. § 924(c)(1)(A) (count 4). Sylvestre moved to suppress the evidence seized at 140 Wahconah Street, claiming that the warrant authorizing the search of the building was not supported by probable cause. The district court denied his motion, finding it "very clear" that the warrant was supported by probable cause because CI's information was deemed to be reliable, and the officers had conducted multiple controlled buys involving Sylvestre and 140 Wahconah Street. Sylvestre's case then proceeded to trial.

At the close of the government's case, Sylvestre moved under Federal Rule of Criminal Procedure 29 for a judgment of acquittal on the gun charges. Sylvestre argued that the government had not introduced sufficient evidence to show that he constructively possessed the gun found at 140 Wahconah Street. The district court rejected this argument and denied the motion. It noted that the gun was found in a drawer along with prescription bottles with Sylvestre's name on them, that officers had also found a cable bill with Sylvestre's name listed on it for 140 Wahconah Street, and that officers had previously observed Sylvestre going into and out of 140 Wahconah Street.

Sylvestre was subsequently found guilty on both gun charges, the charge of possessing heroin with intent to distribute, and the lesser-included offense of simple possession of cocaine.

At sentencing, Sylvestre successfully challenged both the application of an enhancement and the initial calculation of his criminal history category under the United States Sentencing Guidelines. After his objections were sustained, the Guidelines sentencing range was calculated to be 33 to 41 months on counts 1-3 (the felon in possession count and the two drug counts, which were grouped for the purposes of sentencing), as well as a 60-month mandatory minimum on count 4 (possession of a firearm in furtherance of a drug trafficking crime). Sylvestre argued for a sentence of one day on the grouped counts, to be followed by the 60-month mandatory minimum. The one-day recommendation was based on Sylvestre's mental health struggles, as well as his desire to care for his ill grandmother.¹ The government argued for a 96-month sentence on the grouped counts, to be followed by the 60-month mandatory minimum, based on Sylvestre's extensive criminal history and limited time out of custody before being charged with additional crimes.

The district court varied upward and sentenced Sylvestre to 72 months on count 1, the felon in possession count.² In so doing, it focused on Sylvestre's criminal history. The court found that the Guidelines sentencing range did not adequately account for Sylvestre's long history of recidivism, including multiple firearms offenses, which indicated higher danger to the community. The district court also noted that Sylvestre had previously been convicted of a felon-in-possession offense -- the exact same offense of which he had been convicted in this case -- and that he had received a 57-month sentence for that offense. The district court stated that it sympathized with Sylvestre's mental health struggles and the difficulty of being apart from an ill and aging family member. But it concluded that, ultimately, it had to consider punishment and the safety of the community in addition to rehabilitation.

Sylvestre appeals the denials of both the motion to suppress and the motion for judgment of acquittal. He also challenges the substantive reasonableness of his sentence.³

II.

A.

We begin with Sylvestre's challenge to the denial of his motion to suppress. We review the district court's legal conclusions de novo, and its factual findings for clear error. United States v. Burdulis, 753 F.3d 255, 259 (1st Cir. 2014). Sylvestre does not appear to challenge as clearly erroneous any of the district court's factual findings. Instead, he argues that the court's legal conclusion -- that the affidavit authorizing the search of 140 Wahconcah Street was supported by probable cause -- was incorrect.

Probable cause to search exists when police demonstrate "a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Khounsavanh, 113 F.3d 279, 283 (1st Cir. 1997) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). In assessing whether a search warrant affidavit establishes probable cause, the court "consider[s] . . . the 'totality of the circumstances' stated in the affidavit." United States v. Tiem Trinh, 665 F.3d 1, 10 (1st Cir. 2011) (quoting United States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002)). We must "review the affidavit to make 'a practical, common-sense' determination," according deference to reasonable inferences that the issuing judge may have drawn. Id. (quoting Gates, 462 U.S. at 238, 103 S.Ct. 2317). "Further, in a'doubtful or marginal case,' we defer to the issuing judge's probable cause determination." Id. (quoting Barnard, 299 F.3d at 93).

Where an affidavit is based on statements made by an informant, a reviewing court applies a " 'nonexhaustive list of factors' to examine the affidavit's probable cause showing." United States v. Leonard, 17 F.4th 218, 225 (1st Cir. 2021) (quoting Tiem Trinh, 665 F.3d at 10). These include the informant's "basis of knowledge," whether the informant's statements are "self-authenticating," whether some or all of the statements were corroborated by the police, and whether the affidavit includes a "professional assessment of the probable significance of the facts related by the informant." Khounsavanh, 113 F.3d at 284 (quoting United States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir. 1996)). "None of these factors is indispensable; thus, stronger evidence on one or more factors may compensate for a weaker or deficient showing on another." Zayas-Diaz, 95 F.3d at 111.

Sylvestre asserts that many of these factors fail to establish CI's veracity and reliability, and thus cut against finding probable cause. He argues that the police did not corroborate several of CI's statements. For example, he asserts that although the affidavit says that CI called Sylvestre to arrange several of the purchases, the police did not check whether the telephone number that CI used was registered to or controlled by Sylvestre, nor did they confirm that CI actually spoke with Sylvestre on those calls. He also notes that the affidavit did not assess the veracity of CI's information about Sylvestre, his methods of selling drugs, and his customers. Ultimately, he asserts that CI was unreliable, and thus the police could not have based their probable cause determination on CI's statements.

We disagree. First, CI's admissions against penal interest supported CI's credibility. See Leonard, 17 F. 4th at 225. Moreover, the officers' own knowledge corroborated CI's claim that Sylvestre was operating out of 140...