United States v. Pinet-Fuentes , 888 F.3d 557 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1350
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM PINET-FUENTES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Thompson, Boudin, and Kayatta,
Circuit Judges.
Javier A. Morales-Ramos, on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and John A. Mathews II, Assistant United States
Attorney, on brief for appellee.
April 30, 2018
BOUDIN, Circuit Judge. William Pinet-Fuentes (Pinet)
pled guilty in the district court to a charge of illegal possession
of a machine gun, 18 U.S.C. § 922(o), and was sentenced to 30
months in prison to be followed by supervisory release; a further
condition prescribed by the court was that for the first half year,
Pinet would be subject to electronic monitoring and curfew
restrictions. Pinet's appeal contests both the 30-month sentence
and the release conditions.
Pinet was arrested on September 6, 2016, following an
earlier incident in Yabucoa, Puerto Rico. Pinet sat in a front
passenger seat of a car parked at an abandoned gas station at some
distance from the drug transaction that agents perceived him to be
observing. After a pat down of Pinet revealed that he had two
ammunition magazines in his pocket, he admitted to having a weapon
under the seat; it was a loaded Glock, with an extended magazine,
and was fully automatic. Pinet later conceded that his weapon had
earlier been in his lap and was placed under the seat as agents
approached the car.
Section 922(o) makes it unlawful for any person to
possess a "machinegun," with exceptions, such as military and
police, which do not apply to Pinet. "Machinegun," defined through
cross-references, is not limited to the popular conception
portrayed in movies, but effectively includes any weapon,
including a Glock, capable of fully automatic fire. See 18 U.S.C.
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§ 922(a)(4) (noting that machinegun is defined in 26 U.S.C. §
5845).
After Pinet pled guilty, the Probation Officer filed a
pre-sentence report. The ultimate recommended calculation of
Pinet's sentencing range under the guidelines included an upward
adjustment on the premise that the Glock was a stolen firearm.
U.S.S.G. § 2K2.1(b)(4)(A). Pinet disputed the upward adjustment
at the sentencing hearing, as well as the report's recommendation
that for the first six months of supervised release, he be required
to abide by a curfew and submit to electronic monitoring.
At sentencing, the district court adopted, over Pinet's
objections, both the stolen weapon enhancement and the recommended
conditions as to curfew and monitoring. The district court also
imposed the 30-month sentence which was within the range
recommended in the pre-sentence report. The enhancement, the
sentence itself, and the supervised release conditions are all
issues pressed on this appeal. We take them in that order.
Under the sentencing guidelines, much in the sentence
depends on the score or "level" assigned to the defendant. The
level is to be adjusted upward by two levels if the defendant's
firearm was stolen. U.S.S.G. § 2K2.1(b)(4)(A). The district court
makes findings as to such matters under a preponderance of the
evidence standard by which the government must establish the
enhancement; but the district court is not limited by conventional
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jury trial evidence rules and--pertinent here--may consider
reliable hearsay not within some settled exception. United States
v. Rodriguez, 336 F.3d 67, 71 (1st Cir. 2003).
The government offered as evidence a police report,
recounting an interview with the original owner, stating that the
weapon had been stolen from his vehicle in January 2015 while he
was at church. Pinet had previously claimed that he had bought
the gun several years prior to the owner's reported loss of it to
theft. The district court accepted the owner's version of events-
-no motive for him to lie was apparent--while Pinet's self-serving
explanation was convenient but not supported by any other evidence.
For the owner to lie to a police officer would have been
unwise and, so far as we can tell, Pinet gave no specifics to
support his own version of events. He says that the owner's claim
that he drove the gun to church is unlikely, but, based on our
frequent review of cases out of Puerto Rico, it is fair to say
guns are common enough. As between the owner's unimpeached
statement and the story told by a defendant with an obvious motive
to fabricate, the district court could choose to credit the owner.
This disposes of Pinet's enhancement claim without the need to
consider the government's further arguments on this issue.
Turning to Pinet's attack on the reasonableness of the
sentence, the guideline range--given Pinet's offense level and
criminal history--was 24-30 months’ imprisonment. Pinet claims
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that the district court either did or may well have relied on an
inference that Pinet, sitting in a vehicle cradling an automatic
weapon and looking toward the scene of a drug transaction, was a
party to the transaction. The government concedes that it lacked
evidence to convict Pinet for the drug transaction.
Where there is a controverted matter during sentencing,
the district court is required to rule or find that the matter
will not affect sentencing. Fed. R. Crim. P. 32(i)(3)(B). Here,
the government said that it could not prove Pinet was involved in
the transaction beyond a reasonable doubt but said that the
evidence was enough for the judge to find that his involvement was
proved by a preponderance of the evidence. In substance, the court
resolved the matter favorably to Pinet, albeit by indirection.
When defense counsel pressed the issue, saying it would
be improper for the court to accept that Pinet was part of the
conspiracy being witnessed, the judge replied that he was merely
describing the government's allegation. Counsel replied, "Well as
long as it's an allegation, and I understand that you will not
take it into consideration, that will be fine." The judge then
said, "Anything else?" and moved on.
It is enough to say that the judge appeared to accept
defense counsel's solution; counsel made no further protest; and
nothing said afterwards by the judge suggests that he did hold
Pinet responsible for a new and separate crime. As it happens,
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the judge could have ruled that Pinet was responsible for this
second crime and relied directly on it in fashioning the sentence.
But the judge in this case sensibly left defense counsel's proposed
resolution to stand, making the dispute one that "will not affect
the matter in sentencing." Fed. R. Crim. P. 32(i)(3)(B). That
answers this claim now made on appeal.
Pinet's final challenge is to the conditions governing
the first six months of the three-year period of supervised
release. The evident purpose was to limit during a test period
Pinet's freedom of action and provide authorities with a chance to
see whether Pinet was adapting to his new situation, obeying
standard supervisory release conditions and staying out of
trouble. The district court did not need to describe the obvious
steps in its thinking process. United States v. Colón de Jesús,
831 F.3d 39, 44 (1st Cir. 2016). Here, the district court's
reasoning is inferable from the record. See id. at 44-45 ("[A]n
unexplained condition of supervised release may be upheld as long
as the basis for the condition can be inferred from the record."
(citing United States v. Garrasteguy, 559 F.3d 34, 42 (1st Cir.
2009))).
The district court enjoys wide discretion in setting
conditions for supervised release especially where public safety
may be at risk. United States v. Smith, 436 F.3d 307, 311-12 (1st
Cir. 2006). Even where a defendant's challenge is preserved at
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trial, a reviewing court commonly defers to the trial judge who is
likely to be familiar with the defendant. Here the question is
whether the conditions were an abuse of discretion, United States
v. Perazza-Mercado, 553 F.3d 65, 69 (1st Cir. 2009)(citing United
States v. York, 357 F.3d 14, 19 (1st Cir. 2004)), and we conclude
that no such abuse occurred.
Nothing prevents Pinet after some experience with the
conditions from seeking their adjustment if he can show that the
conditions are a serious impingement on his ability to get and
keep a job or in other respects impose an unreasonable burden.
The judgment of the district court is affirmed.
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