United States v. Tirado-Nieves

982 F.3d 1

UNITED STATES, Appellee,

v.Jose A. TIRADO-NIEVES, Defendant, Appellant.

No. 18-2053

United States Court of Appeals, First Circuit.

December 3, 2020

Kendys Pimentel-Soto, San Juan, PR, with whom Kendys Pimentel-Soto Law Office LLC was on brief, for appellant.

Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Lipez and Thompson, Circuit Judges.^*

LIPEZ, Circuit Judge.

Appellant Jose A. Tirado-Nieves was sentenced to eighty-six months' imprisonment after pleading guilty to two firearms counts. He claims the sentence was procedurally unreasonable because the district court improperly applied a four-level sentencing enhancement based on his possession of firearms "in connection with another felony," U.S.S.G. § 2K2.1(b)(6)(B), and because the court imposed an above-Guidelines sentence without proper notice. After careful review of the record, we affirm.

I.

A. Offense Conduct and Guilty Plea¹

In August 2017, an anonymous tipster notified the Puerto Rico police that Tirado-Nieves had been carrying a weapon in plain view in the neighborhood where he lived. In a subsequent search of his home, officers found Tirado-Nieves in a bedroom near an open black bag containing two rifles. They also found there a pistol with an adapter to convert the firearm into an automatic machinegun, eight cell phones, ten pistol magazines of various capacities and calibers, approximately 370 rounds of ammunition, and a suitcase containing a plastic baggie with a small amount of marijuana, as well as various items the government identified as drug paraphernalia.² The drug-related items included color-coded vials, small plastic bags, sifters, baking soda, and a scale. Tirado-Nieves admitted that the firearms and other items belonged to him, and he further admitted that he previously had served a prison term for a felony.

Tirado-Nieves subsequently entered a guilty plea to charges of unlawful possession of a firearm by a felon and illegal possession of a machinegun. See 18 U.S.C. §§ 922(g)(1), 924(a)(2), 922(o).

B. Probation Office Sentencing Recommendation

Tirado-Nieves's Presentence Investigation Report ("PSR") determined a total offense level ("TOL") of 23 based on a calculation that reflected two enhancements: two points because the crimes involved three firearms, see U.S.S.G. § 2K2.1(b)(1)(A), and four additional points because Tirado-Nieves "possessed [a] firearm or ammunition in connection with another felony offense," U.S.S.G. § 2K2.1(b)(6)(B). The PSR also subtracted three points for acceptance of responsibility. See U.S.S.G. § 3E1.1.

After Tirado-Nieves objected to the four-point enhancement set forth in § 2K2.1(b)(6)(B), the Probation Office elaborated on its rationale for that increase in an addendum to the PSR. The addendum noted that "[t]he firearms were found in close proximity to drugs, drug manufacturing materials, and drug paraphernalia," and it concluded that, because "the presence of the firearm[s] has the potential of facilitating another felony offense, which in this case is drug trafficking[,] ... the defendant possessed the firearms in connection with another felony offense[,] drug trafficking."

Accordingly, based on a criminal history category ("CHC") of III and the TOL of 23,³ the PSR calculated a Guidelines range for Tirado-Nieves of 57 to 71 months' imprisonment. The PSR stated that no factors warranting a sentence outside the Guidelines range had been identified, although the report noted that the district court could, in its discretion, impose a variant sentence pursuant to 18 U.S.C. § 3553(a). After the addendum was issued, Tirado-Nieves submitted a formal objection to the application of the four-point enhancement, and he requested a sentence within the 37-to-46-month range that applied without it.

C. Sentencing Hearing

The applicability of the four-level enhancement was vigorously debated at the sentencing hearing. At the outset of the hearing, when the court sought to confirm that all objections to the PSR had been resolved, the government noted that the § 2K2.1(b)(6)(B) enhancement remained in dispute. The government then asserted that, given Tirado-Nieves's possession of an "incredible amount of paraphernalia" suggestive of drug trafficking, the court could "reasonably conclude that the evidence shows that the firearms possessed in this case were in connection to the commission of another crime" even though the government did not charge Tirado-Nieves with a drug trafficking offense. The district court was initially persuaded, stating that "it's my time to rule, and I find that those are clearly related to, and the four points do stand."

At that point, defense counsel asked to present argument on the enhancement, and the court obliged. Tirado-Nieves's counsel then argued, in effect, that some items characterized by the government as "tools of the trade" -- such as the eight cellphones -- were everyday household items that should not be viewed as evidence of drug trafficking.

However, the district court, plainly skeptical that the authorities had found an "innocent" cache of items, observed that, aside from a notebook the government had described as a "ledger," "[e]verything else that is there is related to [the] drug trade." Referring to a one-edged blade found in the room, the court continued: "[U]sually you don't need to be a rocket scientist to know this is to cut cocaine, to cut powder." The court pointed to other items seized -- including a sifter, baking soda, and ziplock bags -- and then asked, "[w]hat is it I'm missing?" After the court observed that "[e]verything by itself can be an innocent item," defense counsel clarified that he was not saying that the items were innocent. He acknowledged that the items could be used for drug trafficking, but he emphasized that they "are equally indicative of drug possession." Where, as here, there was no evidence of prior drug trafficking by Tirado-Nieves or more suggestive evidence -- such as cash -- the paraphernalia was "all indicative of personal use." In such circumstances, counsel argued, the firearms cannot be linked to drug trafficking and the enhancement should not apply.

In response, the government argued that Tirado-Nieves's counsel had "minimiz[ed] the amount of paraphernalia that was found," noting that all of it was found in the bedroom where firearms were recovered and "not in the kitchen" or "all over the house." The prosecutor gave the court additional photographs of the seized paraphernalia,⁴ and asserted that, "for counsel to argue that that incredible amount of paraphernalia is for his personal use or could be attributed to personal use[,] is ... absurd." Defense counsel then responded briefly, emphasizing that "the facts of this case do not look like any of the other cases ... that I've seen where the enhancement is applied."

In announcing its ruling, the court began by noting "the fact that all of these items were found together in the bedroom of this defendant." The court continued:

Taking into consideration the amount of what is in there, and the color coded [vials], the ziplocs, the marijuana, the one edge blades ... which are commonly known to cut material, either the mixers or any powdery substance, it is more indicative than anything else of the commission of a state or federal offense. And specifically a state offense.

Then, after reviewing aloud the Guidelines' application note elaborating on the crimes that qualify as "another felony offense" for purposes of the four-point enhancement,⁵ the court observed that "certainly the illegal possession or the possession of paraphernalia is a state offense as well." The district court referenced "the quantity ... and the type of items" found at Tirado-Nieves's home, observing that "those are indicative and more indicative than not that those are related to the commission of another offense. So the plus four does remain."

After next resolving in Tirado-Nieves's favor the government's sole objection to the PSR,⁶ and hearing additional arguments about the appropriate sentence, the district court adopted the Guidelines range of 57 to 71 months proposed in the PSR. The court reiterated that four points were added pursuant to § 2K2.1(b)(6)(B) "[s]ince these weapons were possessed in connection with another felony offense in which the defendant had reason to believe it would be used in connection with another felony offense." The court then reviewed Tirado-Nieves's prior convictions, educational and employment background, and his substance abuse and mental health history. After describing the murders of several of Tirado-Nieves's family members, the district court made the following statement:

It seems that of course the actions that he has engaged in will keep driving him to this path of violence. Here we have that in the commission of this offense, the only way of describing this, anyone who looks at the pictures brought by the government in the sentencing memo and the ones we have here is that he had an arsenal.

We are talking about rifles. We are talking about modified pistols to shoot in an automatic fashion. Ammunition. He possessed a large quantity of magazines and ammunition. Some of these magazines are large capacity. Five for the rifle. Five for the weapons. A total of 370 rounds.

And we have confidential tips from a neighborhood in which the neighbors are describing seeing this defendant walking around, plain view, carrying weapons. This is blatant disregard for the law, for the safety of the community that he places in danger.

I am aware and I read carefully that he said that he got a weapon after his brother's killing for his own safety. But this is not a weapon for [his] own safety. This is kind of being prepared for a war.

In addition to that, the seizure lead to the eight cell phones, one black bag, one

...