United States Court of Appeals
For the First Circuit
No. 93-1904
UNITED STATES,
Appellee,
v.
DOMINGO REYES-MERCADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Jose A. Fuentes Agostini with whom Dominguez & Totti was on brief
for appellant.
Jorge E. Vega-Pacheco, Assistant United States Attorney, with
whom Guillermo Gill, United States Attorney, was on brief for
appellee.
April 28, 1994
STAHL, Circuit Judge. After being convicted and
STAHL, Circuit Judge.
sentenced on various drug and firearms charges, defendant-
appellant Domingo Reyes-Mercado argues that the district
court erred in 1) denying his motion to suppress evidence; 2)
determining that the evidence presented at trial was
sufficient to convict him; and 3) ruling that it had no power
to credit him for time served under home confinement.
Finding no error, we affirm.
I.
FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
For purposes of defendant's challenge to the
sufficiency of the evidence, we review the facts in a light
most favorable to the government. United States v. Torres-
Maldonado, 14 F.3d 95, 98 (1st Cir. 1994).
Sometime in mid-June of 1992 in Cartagena,
Colombia, a confidential government informant (hereinafter
"CI") working on a ship was provided with four kilograms of
cocaine and instructed to contact defendant upon the ship's
arrival in Ponce, Puerto Rico. On arrival in Ponce on June
17, 1992, the CI telephoned defendant. With codefendant
Rolando Lopez-Maysonet acting as interpreter, defendant
agreed to buy four kilograms of cocaine from the CI. The
purchase was arranged to take place that same day, June 17,
1992, at a shopping center phone booth. Upon defendant's
arrival in a black Nissan Pathfinder, the CI entered the
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vehicle and sold four kilograms of cocaine to defendant and
Lopez-Maysonet. On a signal from the CI, United States
Customs Service agents surrounded the vehicle, placed
defendant and Lopez-Maysonet under arrest, and conducted a
search of the Pathfinder's interior.
In the search, the agents found two handbags
containing money, two cellular telephones, and one carry-on
bag containing four kilograms of cocaine. Pursuant to
established procedures, United States Customs Agent Jose Ruiz
and Marine Enforcement Officer Radames Sanchez then impounded
the car and conducted an inventory search. During the
inventory search of the vehicle, the agents found in the
glove box a loaded Ruger pistol with an obliterated serial
number.
On June 29, 1992, just days after his arrest, the
district court ordered, inter alia, that pending trial,
defendant remain confined at home wearing an electronic
surveillance bracelet. Shortly thereafter, defendant was
charged in a five-count indictment. Three of the counts
related solely to drug violations. Defendant pled guilty to
these three counts.1 The remaining two counts charged
1. The three drug counts stated that defendant and Lopez-
Maysonet 1) conspired to import in excess of 4500 grams of
cocaine in violation of 21 U.S.C. 952(a), 960, and 963; 2)
aided and abetted each other in possessing with an intent to
distribute in excess of 4500 grams of cocaine in violation of
18 U.S.C. 2, and 21 U.S.C. 841(a)(1); and 3) aided and
abetted each other in the use of a communication facility,
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defendant with 1) carrying a firearm in relation to the
commission of a drug offense in violation of 18 U.S.C.
924(c)(1)2; and 2) possession of a firearm having been
transported in interstate commerce and whose manufacturer's
serial number had been obliterated in violation of 18 U.S.C.
922(k)3.
Defendant pled not guilty to both firearms charges.
Prior to trial, a suppression hearing took place before a
magistrate judge at which defendant argued that the gun found
in the inventory search should be suppressed. More
i.e., a telephone, for causing or facilitating the possession
with intent to distribute cocaine, in violation of 18 U.S.C.
2 and 21 U.S.C. 843(b).
2. Section 924(c)(1) provides in relevant part:
Whoever, during and in relation to any
crime of violence or drug trafficking
crime (including a crime of violence or
drug trafficking crime which provides for
an enhanced punishment if committed by
the use of a deadly or dangerous weapon
or device) for which he may be prosecuted
in a court of the United States, uses or
carries a firearm, shall, in addition to
the punishment provided for such crime or
violence or drug trafficking crime, be
sentenced to imprisonment for five years.
3. Section 922(k) provides in relevant part:
It shall be unlawful for any person . . .
to possess or receive any firearm which
has had the importer's or manufacturer's
serial number removed, obliterated, or
altered and has, at any time, been
shipped or transported in interstate or
foreign commerce.
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specifically, defendant argued that the government's evidence
conflicted as to whether the gun was first discovered in the
inventory search, or whether it had been discovered at the
scene of the arrest. Seizing on this inconsistency,
defendant argued that the gun had, in fact, been discovered
at the time of the arrest, and, further, that this discovery
of the gun was unlawful. The magistrate considered the
government's conflicting evidence, determined that the gun
had been lawfully discovered in the inventory search, and
denied the motion to suppress. At trial, a jury convicted
defendant on both firearms counts, and this appeal followed.
II.
DISCUSSION
Defendant argues that 1) the lower court erred in
denying defendant's motion to suppress the gun; 2) the
evidence presented at trial was insufficient to convict
defendant on the weapons charges; and 3) the lower court
erred in determining that it had no power to grant the
appellant credit for the time he had served in home
confinement. We address these arguments in turn.
A. Suppression of the Gun
In arguing that the gun should have been
suppressed, defendant begins by challenging the facts as
found by the magistrate judge at the suppression hearing. In
essence, defendant argues that the gun was not discovered in
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the inventory search, but rather that it was discovered at
the scene of the arrest in an unlawful search of the glove
compartment.
Where the lower court judge sits as the factfinder,
we uphold findings of fact unless they are clearly erroneous.
United States v. Mancini, 8 F.3d 104, 107 (1st Cir. 1993).
Moreover, where there are two permissible views of the
evidence, the interpretation assigned by the lower court must
be adopted. Williams v. Poulos, 11 F.3d 271, 278 (1st Cir.
1993).
In the instant case, Sanchez, the Marine
Enforcement Officer present at the arrest, testified at a
preliminary detention hearing that the gun was first
discovered at the scene of the arrest. Customs Agent Ruiz,
on the other hand, who was also present at the arrest,
testified at the suppression hearing that the weapon was
seized from the Pathfinder during the inventory search. The
magistrate judge, apparently crediting Ruiz's testimony,
expressly found that the gun was first found during the
inventory search. Defendant cites nothing in the record to
indicate that this credibility determination was clearly
erroneous. Accordingly, we find no error in the lower
court's determination that the gun was discovered during the
inventory search. Moreover, defendant concedes the validity
of the inventory search. Cf. United States v. Zapata, No.
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93-1349, slip. op. at 16 (1st Cir. March 24, 1994) ("Courts
have regularly approved inventory searches of impounded motor
vehicles despite the absence of probable cause."). Thus, we
find no error in the district court's denial of defendant's
motion to suppress the gun.4
B. Sufficiency of the Evidence
When reviewing a sufficiency of the evidence
challenge, we examine the evidence in the light most
favorable to the government and affirm convictions where a
rational juror could have found guilt beyond a reasonable
doubt. United States v. Jadusingh, 12 F.3d 1162, 1168 (1st
Cir. 1994).
Under section 924(c)(1), the government must show
that the defendant used one or more firearms during and in
relation to a drug trafficking offense. United States v.
Hatfield, 918 F.2d 987, 996 (1st Cir. 1990), cert. denied,
111 S. Ct. 2062 (1991). Use, as described in section
4. We note additionally that even if the gun was first
discovered at the scene of the arrest, the evidence in the
record before us shows that a search of the glove compartment
incident to defendant's arrest would have been lawful. See
New York v. Belton, 453 U.S. 454, 460-61 & n.4 (holding that
after policeman has made a lawful custodial arrest of the
occupant of an automobile, he may, as a contemporaneous
incident of that arrest, "examine the contents of any
containers," including glove compartments, found within the
passenger compartment). Moreover, given that defendant
concedes the validity of the inventory search, it appears
that the suppression would be inappropriate, inasmuch as the
gun would inevitably have been lawfully discovered. See,
e.g., Zapata, slip op. at 15-17 (discussing generally the
doctrine of inevitable discovery).
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924(c)(1), calls for something more than "possession." See
United States v. McFadden, 13 F.3d 463, 465 (1st Cir. 1994).
While a weapon need not be brandished, displayed or
discharged in order to sustain a conviction under section
924(c)(1), there must be some facilitative nexus between the
weapon and the criminal activity. See Torres-Maldonado, 14
F.3d at 102; United States v. Castro-Lara, 970 F.2d 976, 983
(1st Cir. 1992), cert. denied, 113 S. Ct. 2935 (1993); United
States v. Plummer, 964 F.2d 1251, 1253-55 (1st Cir.), cert.
denied 113 S. Ct. 350 (1992). "[A] conviction will be
sustained under [section 924(c)] if the possessor of a weapon
intended to have it available for possible use during or
immediately following the transaction, or if it facilitated
the transaction by lending courage to the possessor." Id. at
1254 (quoting United States v. Payero, 888 F.2d 928, 929 (1st
Cir. 1989)). "[U]ltimately, whether or not the gun[] helped
[a defendant] commit the drug crime is a matter for a jury,
applying common-sense theories of human nature and
causation." McFadden, 13 F.3d at 466 (quoting United States
v. Wilkinson, 926 F.2d 22, 26 (1st Cir.), cert. denied, 111
S. Ct. 2813 (1991)).
When viewed in the light most favorable to the
government, the evidence shows that a reasonable jury could
find beyond a reasonable doubt that defendant used the gun in
connection with a drug crime as required by section 924(c).
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First, the Pathfinder belonged to and was registered to
defendant. Second, throughout the consummation of the drug
deal, which took place inside the Pathfinder, the loaded gun
was located in the glove compartment directly in front of the
passenger seat where defendant was seated. Finally, the jury
heard ample testimony from Agent Ruiz regarding the details
of defendant's involvement in the cocaine transaction. This
testimony described the plan devised in Colombia to deliver
the cocaine to defendant in Ponce, Puerto Rico. Based on
this evidence, the jury could conclude that the gun was
present by design, rather than happenstance, and that it was
used by defendant in connection with the drug purchase as
required by section 924(c).5
C. The Sentencing Court's Ability to Consider Home
Confinement Toward a Reduction in Sentence
Finally, defendant contends that the sentencing
court erred by concluding that it had no power to grant him
credit for the time he served under home confinement.6 We
disagree.
Under 18 U.S.C. 3585, "[a] defendant will receive
credit towards the sentence of imprisonment for any time he
5. The very evidence supporting defendant's conviction under
section 924(c) also supports his conviction under section
922(k).
6. The record reflects that defendant eventually broke the
conditions of his home confinement and that he was
subsequently incarcerated pending trial.
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has spent in official custody prior to the date the sentence
commences." In a similar case, United States v. Zackular,
945 F.2d 423, 425 (1st Cir. 1991), we stated, "We do not
believe that the official detention requirement of section
3585 can be fulfilled by home confinement." Id. Rather,
"the fact that home confinement is included as a condition of
probation, but not as a substitute for incarceration,
persuasively indicates that Congress considered home
confinement not to be the equivalent of immurement, ergo, not
to come within the ambit of `official detention.'" Id.7
Therefore, under the clear precedent of this
circuit, the district court properly concluded that it did
not have the power to credit defendant for time served under
home confinement.
III.
CONCLUSION
For the foregoing reasons, defendant's conviction
and sentence are
7. Since we decided Zackular, the Supreme Court has held in
United States v. Wilson, 112 S. Ct. 1351 (1992), that, in the
first instance, credit under section 3585 must be calculated
by the Attorney General. Id. at 1354. As far as the record
before us reflects, no such calculation was requested or made
here. Despite defendant's failure to exhaust administrative
remedies, we reaffirm that part of Zackular which holds that
pretrial home confinement may not be credited toward
"official detention." Cf. Fraley v. United States Bureau of
Prisons, 1 F.3d 924, 925-26 (9th Cir. 1993) (holding that
home confinement may not be credited toward official
detention).
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Affirmed.
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