United States v. Nunez , 840 F.3d 1 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-2297
UNITED STATES OF AMERICA,
Appellee,
v.
JOWENKY 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 Thompson, Circuit Judges.
William S. Maddox on brief for appellant.
Seth R. Aframe, Assistant United States Attorney, District of
New Hampshire, and Emily Gray Rice, United States Attorney,
District of New Hampshire, on brief for appellee.
October 19, 2016
SELYA, Circuit Judge. Defendant-appellant Jowenky Nuñez
challenges the sentence imposed following his guilty plea to a
charge of conspiracy to possess with intent to distribute 28 grams
or more of cocaine base (crack cocaine). See 21 U.S.C.
§§ 841(a)(1), 846. He raises three discrete claims of error,
implicating a sentencing enhancement for his leadership role in
the offense, a sentencing enhancement for his possession of a
firearm during and in furtherance of a drug-trafficking crime, and
the substantive reasonableness of his sentence. Finding these
claims of error unpersuasive, we affirm.
I. BACKGROUND
As this appeal follows a guilty plea, we draw the facts
from the change-of-plea colloquy, the plea agreement, the
uncontested portions of the second revised presentence
investigation report (PSI Report), and the transcript of the two-
day disposition hearing. See United States v. Almonte-Nuñez, 771
F.3d 84, 86 (1st Cir. 2014).
The appellant was arrested on February 2, 2012, and
charged with conspiracy to distribute and possess with intent to
distribute 28 grams or more of cocaine base, as well as possession
of a firearm in furtherance of a drug-trafficking offense. These
charges arose out of a long and thorough investigation, spearheaded
by the Drug Enforcement Administration, into drug-trafficking
activities in Bangor, Maine. The appellant originally maintained
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his innocence but — on January 18, 2013 — he pleaded guilty to the
conspiracy charge.1
At a disposition hearing spread over two separate days,
the appellant identified three purported inaccuracies in the PSI
Report. First, he contested the finding that he served as a
manager of the enterprise and, consequently, he objected to the
proposed aggravating role enhancement. Second, he contested the
finding that he carried a firearm with him to make drug deliveries
and, consequently, objected to the proposed two-level enhancement
for possession of a firearm in the course of the crime of
conviction. Third, he contested the accuracy of the PSI Report's
drug-quantity calculation.
The district court acknowledged and discussed each
objection. In rejecting the appellant's first objection, the court
reviewed testimony from several coconspirators and pointed
specifically to uncontradicted testimony from Dawlin Cabrera (the
ringleader of the conspiracy) to the effect that the appellant was
the person who kept him updated on sales and receipts.
Turning to the weapons enhancement, the court agreed
with the appellant that the government had not sufficiently tied
the gun mentioned in the PSI Report to the appellant and the crime
of conviction. However, the court accepted the government's
1Pursuant to the plea agreement, the firearms charge was
dismissed at the time of sentencing.
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proffer of the appellant's own testimony during a coconspirator's
trial, indicating that he (the appellant) possessed a different
gun while conducting the conspiracy's business. This newly
introduced evidence, the court concluded, justified the weapons
enhancement.
The appellant enjoyed more success with his final
plaint. The district court accepted his (somewhat reduced) drug-
quantity calculation.
When all was said and done, the court set the appellant's
base offense level at 32, see USSG §2D1.1(c)(4); applied the two-
level weapons enhancement, see id. §2D1.1(b)(1); applied the
three-level role-in-the-offense enhancement, see id. §3B1.1(b);
and subtracted three levels for acceptance of responsibility, see
id. §3E1.1. These findings yielded a total offense level of 34.
The appellant's past record placed him in Criminal History Category
(CHC) III. As a result, the appellant's guideline sentencing range
(GSR) was 188 to 235 months.
Taking into account the appellant's substantial
assistance to the government and the government's corresponding
recommendation of a below-the-range 120-month sentence, the court
departed downward, see id. §5K1.1, and imposed a 97-month
incarcerative sentence. In formulating this term of immurement,
the court noted its consideration of the appellant's criminal
history, character, and the nature and circumstances of the
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conspiracy. The court also noted the appellant's specific role in
the offense, the need to protect the public, and its desire to
avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a).
This timely appeal ensued.2
II. ANALYSIS
Appellate review of federal criminal sentences is for
abuse of discretion. See Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008).
The process is bifurcated. A reviewing court must first determine
whether the sentence imposed is procedurally reasonable (that is,
free from non-harmless procedural error) and then must determine
whether it is substantively reasonable. See Gall, 552 U.S. at 51.
It follows that "[t]he touchstone of abuse of discretion
review in federal sentencing is reasonableness." United States v.
Vargas-Dávila, 649 F.3d 129, 130 (1st Cir. 2011). That review "is
characterized by a frank recognition of the substantial discretion
vested in a sentencing court." United States v. Flores-Machicote,
706 F.3d 16, 20 (1st Cir. 2013). Within this framework, we review
a district court's factual findings for clear error, and its
2
Although the appellant was indicted, convicted, and sentenced
in the District of Maine, the government is represented on appeal
— as it was below — by prosecutors from the District of New
Hampshire. The reason for this odd configuration need not concern
us.
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interpretation and application of the guidelines de novo. See
United States v. Walker, 665 F.3d 212, 232 (1st Cir. 2011).
"Reasonableness is itself an inherently fluid concept."
United States v. Bermúdez-Meléndez, 827 F.3d 160, 166 (1st Cir.
2016). There is not a single reasonable sentence "but, rather, a
universe of reasonable sentencing outcomes." United States v.
Clogston, 662 F.3d 588, 592 (1st Cir. 2011).
The federal sentencing guidelines are merely advisory.
See United States v. Booker, 543 U.S. 220, 245 (2005). Still, the
GSR remains the conventional starting point for constructing a
federal sentence. See Martin, 520 F.3d at 91. The sentencing
court is obliged to calculate the GSR correctly, and a party may
challenge an incorrect calculation even where, as here, the court
levies a sentence below the bottom of the range. See United States
v. Gobbi, 471 F.3d 302, 313 n.7 (1st Cir. 2006).
With these principles in mind, we turn first to the
appellant's claim that the sentencing court erred when it applied
a three-level enhancement for his leadership role in the
conspiracy. See USSG §3B1.1(b). Such an enhancement requires
dual findings. First, the court must find that the underlying
criminal activity involved five or more participants or was
otherwise extensive. See id. Second, the court must find that
the defendant, when committing the offense, managed,
superintended, or exercised hegemony over at least one other
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participant. See, e.g., United States v. Voccola, 99 F.3d 37, 44
(1st Cir. 1996). In this instance, the appellant does not contest
that the conspiracy involved five or more participants; instead,
he claims that he simply followed orders and attacks the district
court's finding that he exercised managerial responsibilities with
respect to other participants in the enterprise.
This attack is easily repulsed. It ignores the testimony
of several coconspirators, which confirmed the appellant's
exercise of operating control over various individuals at
different times during the life of the conspiracy. For example,
Cabrera testified to the effect that the appellant was responsible
for keeping him updated on the financial aspects of the conspiracy;
Alfarabick Mally testified that the appellant was "in charge when
Cabrera was not in Bangor"; Robert Jordan testified that the
appellant was known as "the General" and was the drug ring's de
facto "head of operations"; and Keith Bo Lewis testified that the
appellant was "in charge of the crew."
Criminal cabals do not normally have formal
organizational charts, and a finding of managerial control can
supportably be premised on how the enterprise operated in practice.
See United States v. Cruz, 120 F.3d 1, 3-4 (1st Cir. 1997) (en
banc). Here, the record is replete with evidence that, either
directly or by fair inference, solidly supports the district
court's conclusion that the appellant was not "out on the street"
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but, instead, was responsible for overseeing retail sellers and
trusted by Cabrera to exert control over other players in the
enterprise. No more was exigible to ground the role-in-the-offense
enhancement. See United States v. Cruz-Rodríguez, 541 F.3d 19, 33
(1st Cir. 2008); see also United States v. Savoie, 985 F.2d 612,
616 (1st Cir. 1993) (recognizing that a defendant need not be the
head of a conspiracy in order to warrant managerial role-in-the-
offense enhancement).
Next, the appellant argues that the district court
committed clear error in imposing the two-level weapons
enhancement. The applicable sentencing guideline authorizes such
an enhancement "[i]f a dangerous weapon (including a firearm) was
possessed" during the course of a drug-trafficking crime. USSG
§2D1.1(b)(1). The government has the initial burden of
establishing that the defendant possessed a weapon during the
commission of the offense. See United States v. Anderson, 452
F.3d 87, 90 (1st Cir. 2006). Once that burden has been satisfied,
the enhancement attaches unless the defendant can show that it was
clearly improbable that the weapon was connected to the crime.
See USSG §2D1.1, cmt. n.11; see also Gobbi, 471 F.3d at 313.
Here, the appellant is aiming at the wrong target. His
argument focuses on a firearm purchased around August of 2011 by
a coconspirator, Jennifer Holmes. But though the government
initially sought the weapons enhancement based on this firearm,
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the district court rejected the government's proffer. The Holmes
firearm is, therefore, irrelevant to the enhancement actually
imposed.
The district court predicated the weapons enhancement on
a different firearm: a firearm owned by yet another coconspirator,
Eddie Cogswell. The court cited the appellant's own testimony (in
a different case), in which he admitted that he had carried the
Cogswell firearm at the place where the conspiracy's inventory of
drugs was stashed.3 The appellant's brief on appeal offers no
exculpatory explanation for this testimony.
Accepting the excerpt from the appellant's testimony,
the district court found that the appellant possessed the Cogswell
firearm on the premises where the conspiracy's stash of crack
cocaine was stored and, thus, used the firearm in the course of
the conspiracy. To buttress this finding, the court recounted the
testimony of two other coconspirators, Keith Bo Lewis and
Alfarabick Mally. In the court's words, the evidence "put a gun
in [the appellant's] hand at the house where there was truly an
enormous amount of crack cocaine."
3 When confronted with the Cogswell firearm at the earlier
trial, the appellant testified: "I know that gun. That gun's
always been in the house. . . . and I've had it in my hand." The
appellant added that he knew the weapon "[b]ecause I've had that
gun for a long time. I've always had it there [at the stash
house]. . . . I've always carried it there." The clear implication
of this testimony, unrebutted by the record, is that the firearm
was kept at the stash house to safeguard the drug inventory.
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We have held that, absent some innocent explanation,
mere possession of a firearm during and in the course of a drug-
trafficking conspiracy may justify a weapons enhancement. See
United States v. Ruiz, 905 F.2d 499, 507 (1st Cir. 1990); see also
USSG §2D1.1(b)(1). Where, as here, the appellant has neither
articulated an innocent explanation for his possession of the gun
nor identified any evidence indicating the improbability of a link
between the gun and the crime of conviction, evidence of possession
at the stash house was all that was required. See Gobbi, 471 F.3d
at 313. Thus, we discern no error — clear or otherwise — in the
district court's imposition of the enhancement.
Before leaving the weapons enhancement, a further
comment is in order. In resisting this enhancement, the appellant
dwells at some length on his putative withdrawal from the
conspiracy. His argument, however, is directed at the facts
surrounding his use of the Holmes weapon: the incidents involving
the Cogswell weapon occurred before the appellant's putative
withdrawal from the conspiracy. Consequently, we need not address
the withdrawal question.4
4In a single sentence in his brief, the appellant suggests
that his putative withdrawal from the conspiracy may have affected
the district court's drug-quantity calculation. Any such
suggestion is doubly defaulted. For one thing, the district court
used the very drug-quantity calculation proposed at sentencing by
the appellant, and the appellant is bound by that calculation.
See United States v. Teeter, 257 F.3d 14, 28 (1st Cir. 2001). For
another thing, the appellant's brief is bereft of developed
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The appellant's challenge to the substantive
reasonableness of his sentence need not detain us. Since the
appellant did not advance this claim of error below, there is some
question as to whether our review is for abuse of discretion or
for plain error. See United States v. Ruiz-Huertas, 792 F.3d 223,
228 & n.4 (1st Cir.), cert. denied, 136 S. Ct. 258 (2015). Here,
however, we need not answer this question: assuming, favorably to
the appellant, that our review is for abuse of discretion, the
claim of error nonetheless fails.
A substantively reasonable sentence ought to reflect
both a plausible sentencing rationale and a defensible result.
See Martin, 520 F.3d at 96. That benchmark was achieved in this
instance.
The district court's sentencing rationale was perfectly
plausible. The court carefully considered the sentencing factors
identified by Congress. See 18 U.S.C. § 3553(a); Martin, 520 F.3d
at 92. In particular, it stressed the pivotal role that the
appellant played in saturating the Bangor area with a flood of
crack cocaine. These activities, in the court's view, were
argumentation concerning any drug-quantity issue and, thus, any
such claim of error has been abandoned. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (recognizing that "[i]t is
not enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel's work").
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directly correlated with the extreme wreckage left behind in the
community. See Flores-Machicote, 706 F.3d at 22-23.
The court also considered the appellant's personal
characteristics. In particular, the court noted that the appellant
was not himself a crack cocaine user and that his involvement in
the drug-trafficking enterprise was motivated purely by greed, not
by his own addiction. See United States v. Deppe, 509 F.3d 54, 62
(1st Cir. 2007).
So, too, the sentence imposed was plainly within the
universe of reasonable sentences. To begin, the sentence fell
substantially below the nadir of the GSR. As we have explained,
"[i]t is a rare below-the-range sentence that will prove vulnerable
to a defendant's claim of substantive unreasonableness." United
States v. King, 741 F.3d 305, 310 (1st Cir. 2014). This is not so
rare a case.
The appellant's rejoinder is that his sentence was
disproportionate to the sentence imposed on Cabrera (the
ringleader of the conspiracy). Cabrera initially received a 120-
month sentence, which — as predicted by the district court — was
shortened to 97 months following palliative amendments to USSG
§2D1.1(c).
This amounts to a claim of sentencing disparity, which
we approach mindful that a salient consideration in the fashioning
of a criminal sentence is to "avoid unwarranted sentence
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disparities among defendants with similar records who have been
found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). The
appellant cannot pass through this screen. Merely pointing to a
coconspirator's sentence, without more, does not prove the
existence of an impermissible sentencing disparity. See United
States v. Rivera-López, 736 F.3d 633, 636 (1st Cir. 2013); United
States v. Dávila-González, 595 F.3d 42, 50 (1st Cir. 2010). After
all, "a defendant is not entitled to a lighter sentence merely
because his co-defendants received lighter sentences." United
States v. Gomez-Pabon, 911 F.2d 847, 862 (1st Cir. 1990).
In all events, the appellant's proposed comparator did
not receive a lighter sentence. And even though Cabrera occupied
a higher place in the hierarchy of the conspiracy, there was an
offsetting circumstance: the appellant (who was in CHC III) had a
significant record of past criminality, whereas Cabrera (who was
in CHC I) did not. In short, the appellant is comparing plums to
pomegranates: there is a salient distinction between the appellant
and his proposed comparator, and that distinction — the appellant's
more extensive criminal record — defeats any claim that the two
individuals were similarly situated. See Flores-Machicote, 706
F.3d at 24-25.
That ends this aspect of the matter. We conclude,
without serious question, that the appellant's below-the-range
sentence was substantively reasonable.
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III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
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