United States v. McLean

United States Court of Appeals
For the First Circuit

No. 03-2433

UNITED STATES OF AMERICA,

Appellee,

v.

DALE MCLEAN,

Defendant, Appellant.

No. 03-2600

UNITED STATES OF AMERICA,

Appellee,

v.

MANOLIN FELIZ TERRERO,

Defendant, Appellant.

No. 03-2646

UNITED STATES OF AMERICA,

Appellee,

v.

MAURICIO BERGUETTE-MERAN, a/k/a Manuel Enrique Heyliger Cruz,

Defendant, Appellant.
No. 04-1110

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN ANTONIO NAVARRO,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella, and Howard, Circuit Judges.

Edward S. MacColl, with whom Thompson, Bull, Furey, Bass &
MacColl, LLC, P.A. was on brief, for appellant Dale McLean.
Henry W. Griffin was on brief, for appellant Manolin Feliz
Terrero.
Robert Ruffner, with whom Vincent Kantz & Ruffner was on
brief, for appellant Mauricio Berguette-Meran.
William Maselli was on brief, for appellant Juan Antonio
Navarro.
Margaret D. McGaughey, Appellate Chief, with whom Paul D.
Silsby, United States Attorney was on brief, for appellee.

June 9, 2005
 HOWARD, Circuit Judge. These consolidated appeals arise

from a drug trafficking conspiracy in Maine in which all the

appellants pleaded guilty or were convicted at trial of conspiracy

to distribute crack cocaine. Appellants Dale McLean, Manolin

Feliz-Terrero, Juan Navarro and Mauricio Berguette-Meran all

challenge their sentences.1 Navarro also challenges the partial

denial of his motion to suppress.

I.

We present a brief overview of the facts, reserving a

more detailed discussion for our analysis.

A. The Conspiracy

From early summer of 2002 until a November 19, 2002 law

enforcement raid, the appellants and a host of other individuals

participated in a crack distribution conspiracy in Sabbattus,

Maine. Jorge Mattos of Springfield, Massachusetts, led the

operation, along with his lieutenant, Janci Feliz. Through an

intermediary named James Birkbeck, Mattos arranged to rent a room

in a trailer belonging to McLean and Debra Schrock in Sabbattus.

Mattos agreed to pay McLean, Schrock, and Birkbeck with cash or

drugs. The conspiracy operated as follows.

Mattos would send two individuals to the McLean trailer

to sell prepackaged crack. The sellers would stay for

1
Appellant Jorge Marques dismissed his appeal shortly after
this case was argued.

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approximately one to two weeks. At the end of the period, they

would be relieved by a new two-person team, which would also serve

a one or two-week shift and then be relieved. Appellants Feliz and

Berguette comprised one such team.

The trailer had two bedrooms, each with an adjoining

bathroom. McLean and Schrock shared what we will label the left

bedroom; the drug-selling teams sent by Mattos stayed in the right

bedroom. The teams retained control of the drugs and the drug

proceeds, which they typically hid outside the trailer. Generally,

Birkbeck, McLean or Schrock would deal with the drug purchasers and

collect the purchase price. They would take the money to a team

member in the right bedroom or adjoining bathroom and exchange the

cash (or acceptable electronic merchandise such as game systems and

televisions) for crack. Birkbeck, McLean, or Schrock would then

deliver the crack to the purchaser, keeping an agreed upon portion

of crack or cash for himself or herself. Birkbeck, McLean, and

Schrock regularly smoked crack during the relevant period, and

McLean ran up a drug debt beyond his agreed remuneration. By late

in the conspiracy, McLean became largely incapacitated due to heavy

crack usage and spent most of his time in the left bedroom.

Mattos used Navarro, his nephew, as his link with the

conspirators in Maine. As Mattos' representative, Navarro managed

the assets of the conspiracy, controlled the local participants,

and resupplied the drug-selling teams. Upon being notified by the

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team that the crack supply was running low, Navarro would go to

Maine with additional supply and take the sales proceeds back to

Mattos. Navarro also managed the communications between the other

participants, serving as a translator between the drug-selling

teams (whose members were Dominican and spoke Spanish) and

Birkbeck, McLean and Schrock (who spoke English). In addition,

Navarro directed Birkbeck, McLean and Schrock, instructing Schrock

to keep the operation "safe" and to handle the customers (so that

the drug-selling teams could remain hidden), and McLean to serve in

Birkbeck's stead after Birkbeck's arrest. Significantly, Navarro

also served as enforcer, once tracking down an individual who stole

drugs and cash from the operation, and threatening Schrock with

death if she ever "ratted" out the conspirators. Navarro also

threatened (once at gunpoint) to kill McLean's daughter, Crystal

McLean, when McLean resisted Navarro's directive that he replace

Birkbeck, and when McLean failed to pay off his mounting drug debt.

In early November, Marques, Crystal McLean's fiancé, came

to live at the trailer in response to the threats against her. He

agreed to participate in the conspiracy by helping to service

McLean's customers until McLean's debt to Navarro was paid. During

this period, either Marques or Crystal was required to remain at

the trailer at all times, as security for McLean's debt. Marques'

arrival in November changed the living arrangements in the trailer.

While the narcotics transactions still took place in the right

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bedroom and adjoining bathroom, the drug-selling teams no longer

slept there. Instead, they permitted Marques and Crystal to use

the right bedroom (beginning a few days before the raid), while the

teams slept in the living room.

A cooperating individual ("CI") began making purchases

from the trailer in October. These purchases and related phone

calls were monitored by law enforcement. During an October 28,

2002 purchase, McLean told the CI that the members of the drug-

selling team were interested in acquiring 9 mm handguns, and that

McLean himself was interested in the CI's .357 magnum revolver. At

a November 4, 2002 purchase, McLean again asked the CI about the 9

mm pistols in which the drug-selling team had expressed an

interest.

Law enforcement agents raided the trailer on November 19,

2002. They arrested Marques, Crystal, and Feliz in the right

bedroom, McLean in the left bedroom, and Berguette outside the

trailer. In the right bedroom, the agents found 5 rocks of crack,

a .22 caliber handgun, and $1820 in cash. An additional $7900 in

cash was found in a crawl space under the trailer.

B. District Court Proceedings

McLean, Feliz and Berguette each pleaded guilty to

conspiring to distribute 50 or more grams of cocaine base and

agreed to cooperate with the government. Marques pleaded guilty to

conspiring to distribute 5 or more grams of cocaine base and also

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agreed to cooperate.2 McLean was sentenced first, and Marques,

Feliz and Berguette were sentenced shortly thereafter in a

consolidated proceeding. All received two-level increases for

possession of a firearm under U.S.S.G. § 2D1.1(b)(1), and all were

denied the benefit of safety valve provisions, set forth at 18

U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, because of the presence of

the .22 caliber handgun. See 18 U.S.C. § 3553(f)(2)(safety valve

unavailable if defendant "possess[es] a firearm"); U.S.S.G. §

5C1.2(a)(2)(same). All were the beneficiaries of government

motions for downward departures for substantial assistance. The

sentencing ranges and net sentences after the downward departures

were as follows: Berguette, a range of 135-168 months, and an

actual sentence of 95 months; Feliz, a range of 168-210 months, and

an actual sentence of 118 months; Marques, a range of 46-57 months,

and an actual sentence of 24 months; and McLean, a range of 108-135

months, and an actual sentence of 44 months.

Navarro went to trial after the district court denied, in

part, his motion to suppress certain statements that he made after

his arrest. At trial, McLean, Schrock, Marques, Birkbeck,

Berguette, Feliz, and Crystal McLean testified against him. The

government introduced post-arrest statements made by Navarro that

he had been a driver and translator for the conspiracy, and his

2
Schrock and Birkbeck also pleaded guilty. Crystal McLean was
not charged.

-6-
statement in which he identified the conspiracy's "boss." The jury

found him guilty of conspiring to distribute 50 grams or more of

crack cocaine. The district court found Navarro's guideline range

to be 262 to 327 months and sentenced him to 300 months'

imprisonment. These appeals followed.

II.

Navarro challenges the partial denial of his motion to

suppress his post-arrest statements. Navarro also challenges a

sentencing enhancement for his role as a manager or supervisor in

the conspiracy. McLean, Feliz, and Berguette raise a common issue:

whether the district court erroneously denied them the benefits of

the "safety valve" provision because they possessed a firearm

during the course of the conspiracy. Navarro and Berguette also

seek to raise issues based upon Blakely v. Washington, 124 S. Ct.

2531 (2004).

A. Motion to Suppress

Navarro argues that the district court erred in failing

to suppress certain of his post-arrest statements. The relevant

facts are as follows.

Navarro was arrested after the other appellants when he,

along with Mattos and another conspirator, attended Feliz's

detention hearing. Navarro and his companions were identified to

law enforcement officers by Crystal McLean, who was present in the

courthouse. As he was led off to be booked, Navarro became

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hysterical and made unprompted statements about his role as driver

and translator, and about Mattos. He also offered to cooperate to

avoid going to jail. While being booked by Marshal Folan and DEA

Agent Rousseau, Navarro continued his outbursts and referred to an

individual named "Tommy." Rousseau asked Navarro "Who is Tommy?"

Navarro identified "Tommy" as Janci Feliz. He also volunteered that

Mattos owned a restaurant called "El Creoleo" in Springfield, and

that Mattos worked for a Latin King street gang member in New York

named "Tommy." Navarro was not read his Miranda rights during the

booking procedure.

Navarro moved to suppress his post-arrest statements and

was granted a hearing at which Folan, Rousseau and Navarro

testified. Navarro claimed on direct examination that the

officers, in particular Rousseau, were anxious to get him alone and

interrogate him from the beginning. But on cross examination, he

conceded that he was sobbing in the booking room and offered

certain information in an effort to get released.

The magistrate judge who conducted the hearing concluded

that everything said prior to the "Tommy" question was voluntarily

offered by Navarro in an attempt to secure his release. But he

also concluded that the "Who's Tommy?" question violated Miranda

because it was reasonably likely to elicit incriminating

information. He thus recommended that the answer to the "Tommy"

question and the statements that followed –- that Janci was

-8-
"Tommy," that Mattos owned a Springfield restaurant called "El

Creoleo," and that Mattos worked for a Latin King called "Tommy" --

be excluded. The trial judge accepted the recommendation in its

entirety. Navarro argues that all of his statements should have

been suppressed as obtained in violation of Miranda.

"We review a district court's findings of fact with

respect to a suppression motion for clear error." United States v.

Lopez, 380 F.3d 538, 543 (1st Cir. 2004). Our review of the

district court's ultimate application of Miranda is de novo.

United States v. Reyes, 225 F.3d 71, 75 (1st Cir. 2000).

If the defendant is not advised of his Miranda rights and

has not validly waived them, "the police are prohibited from

interrogating him and any statements obtained in violation of this

rule will be excluded from evidence at trial . . . ." Reyes, 225

F.3d at 76 (internal citation omitted). But there are two

exceptions to the Miranda doctrine which are relevant here. First,

there is a booking exception, which allows police officers to ask

general background questions (name, date of birth, etc.) while

processing a newly arrested individual without advising him of his

Miranda rights. Id. at 76-77. Second, "any statement made freely

and voluntarily without any compelling influences is, of course,

admissible in evidence." Lopez, 380 F.3d at 545 (internal

quotation and citation omitted).

-9-
 In our view, the district court correctly concluded that

these Miranda exceptions apply to Navarro's statements prior to

being asked "Who's Tommy?" The only questions that the officers

asked before this question were booking questions, and the

additional information that Navarro provided before the "Tommy"

question was thus volunteered. And, as we have set forth above,

the district court excluded all the statements made in response to

the one non-booking question. The admission of Navarro's other

statements did not violate Miranda.3

B. Role in Offense Enhancement

Navarro argues that the evidence was insufficient to show

that he held a managerial or supervisory position in the

conspiracy.4 He asserts that the testimony of the Massachusetts

conspirators shows that he was an ordinary participant and that

Mattos and Janci Feliz were the only leaders. He also asserts that

the Maine conspirators' testimony regarding his threats was not

credible.

3
In so ruling, we reject Navarro's entreaty that we disbelieve
the officers' testimony as to what happened. The district court
accepted the officer's testimony and our review of the record
persuades us that the court's credibility determinations were not
clearly erroneous.
4
The relevant section of the guidelines provides that a
defendant's offense level be increased by three levels based upon
his role as a manager or supervisor in the criminal conduct if the
criminal conduct involved five or more participants or was
otherwise extensive. See U.S.S.G. § 3B1.1(b). There is no dispute
that there were five or more participants in the conspiracy.

-10-
 The district court concluded that a three-level

enhancement was appropriate because Navarro acted as a manager in

the conspiracy by controlling its assets and directing at least one

other participant. We review the district court's application of

an enhancement based upon the defendant's role in the offense for

clear error. See United States v. May, 343 F.3d 1, 7 (1st Cir.

2003.

Navarro's claim that Mattos and Janci Feliz were the true

leaders is a nonstarter. That Mattos and Janci were higher up the

chain at the conspiracy's Massachusetts "headquarters" says nothing

about whether Navarro acted as a "local" supervisor of the Maine

conspirators, as the district court found. Navarro concedes that

the Maine conspirators regarded him as a supervisor, and the

evidence overwhelmingly establishes that he supervised them.

Navarro's claim that the Maine conspirators' testimony

regarding his threats was not credible also goes nowhere. The

district court was able to observe the witnesses and assess their

credibility far better than this court can from a cold record. See

generally United States v. Marshall, 348 F.3d 281, 286 (1st Cir.

2003). Moreover, as we have said, the evidence shows that Navarro

managed the conspiracy's assets and directed the Maine conspirators

in their duties. This evidence itself is more than enough to

justify the enhancement.

-11-
C. Application of the Safety Valve

McLean, Feliz, and Berguette do not contest the propriety

of the two-level enhancement that they received under U.S.S.G. §

2D1.1(b)(1),5 but they challenge the district court's conclusion

that they were ineligible for the safety valve. The court found,

insofar as is relevant,6 that the safety valve was unavailable

because, in the court's view, each of the three conspirators

possessed the .22 caliber handgun during the course of the

conspiracy. Appellants contend that only proof of "actual

possession" is sufficient to foreclose the application of the

safety valve, and that even if constructive possession is

sufficient (as the court found), there was inadequate evidence to

establish such possession.

As suggested above, the "safety valve" provision allows

a defendant to avoid the imposition of a mandatory minimum sentence

so long as the defendant and the offense meet certain enumerated

5
Section 2D1.1(b)(1) provides for a two level increase in the
offense level "[i]f a dangerous weapon (including a firearm) is
possessed . . . ."
6
Shortly before the sentencing proceedings in this case, we
held that a co-conspirator's possession of a firearm will not
foreclose the application of the safety valve in favor of another
co-conspirator who did not possess the firearm. See United States
v. Figueroa-Encarnacion, 343 F.3d 23, 34-5 (1st Cir. 2003). The
district court partially based its decision to deny McLean the
safety valve on a theory of co-conspirator liability foreclosed by
Figueroa-Encarnacion, but alternatively on the ground of McLean's
constructive possession of the firearm. We focus on the court's
alternative holding for present purposes.

-12-
criteria. See 18 U.S.C. § 3553(f).7 The safety valve is

7
The statute provides:

(f) Limitation on applicability of statutory minimums in
certain cases.–Notwithstanding any other provisions of
law, in the case of an offense under section 401, 404, or
406 of the Controlled Substances Act (21 U.S.C. 841, 844,
846) or section 1010 or 1013 of the Controlled Substances
Import and Export Act (21 U.S.C. 960, 963), the court
shall impose a sentence pursuant to guidelines
promulgated by the United States Sentencing Commission
under section 994 of title 28 without regard to any
statutory minimum sentence, if the court finds at
sentencing, after the Government has been afforded an
opportunity to make a recommendation, that --

(1) the defendant does not have more than 1
criminal history point, as determined under
the sentencing guidelines;
(2) the defendant did not use violence or
credible threats of violence or possess a
firearm or other dangerous weapon (or induce
another participant to do so) in connection
with the offense;
(3) the offense did not result in death or
serious bodily injury to any person;
(4) the defendant was not an organizer,
leader, manager, or supervisor of others in
the offense, as determined under the
sentencing guidelines and was not engaged in a
continuing criminal enterprise, as defined in
section 408 of the Controlled Substances Act;
and
(5) not later than the time of the sentencing
hearing, the defendant has truthfully provided
to the Government all information and evidence
the defendant has concerning the offense or
offenses that were part of the same course of
conduct or of a common scheme or plan, but the
fact that the defendant has no relevant or
useful other information to provide or that
the Government is already aware of the
information shall not preclude a determination
by the court that the defendant has complied
with this requirement. 18 U.S.C. §3553(f).

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reproduced, essentially verbatim, in the guidelines, see U.S.S.G.

§ 5C1.2, which, if applicable, can garner the defendant a two-level

reduction in offense level, see U.S.S.G. § 2D1.1(b)(6). But as we

have stated, the safety valve is unavailable to a defendant who

"possess[es] a firearm . . . in connection with the offense." See

18 U.S.C. § 3553(f)(2); U.S.S.G. § 5C1.2(a)(2).8

The question therefore arises: What constitutes

"possession" of a firearm within the meaning of the statute and the

guideline? Appellants contend that only "actual" possession9 of a

gun will suffice; the government responds that "constructive"

possession is enough. We think that the government has the better

argument.

Adoption of the appellants' position would be

inconsistent with our normal interpretation of the word

"possession" in the guidelines. See United States v. McDonald, 121

F.3d 7, 10 (1st Cir. 1997) (for purposes of U.S.S.G. § 2D1.1(b)(1),

"any possession – actual or constructive – can trigger the two-

level increase.") Further, our cases have generally held that

8
As the government concedes, the fact that McLean, Feliz, and
Berguette all received downward departures based on their
cooperation which took them below the statutory minimum does not
render this challenge moot. See generally United States v. Emery,
991 F.2d 907, 910 (1st Cir. 1993). The government also concedes
that these appellants were otherwise eligible for the safety valve.
9
Actual possession is generally defined as "the state of
immediate, hands-on physical possession." See United States v.
Zavala Maldonado, 23 F.3d 4, 6 (1st Cir. 1994).

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either actual or constructive possession suffices in the context of

firearms, explosives, and narcotics offenses. See, e.g., United

States v. Liranzo, 385 F.3d 66, 69 n. 2 (1st Cir. 2004) (18 U.S.C.

§ 922(g)(1)); United States v. Carlos Cruz, 352 F.3d 499, 510 (1st

Cir. 2003)(18 U.S.C. §924); United States v. Lopez-Lopez, 282 F.3d

1, 19 (1st Cir. 2002)(21 U.S.C. §841(a)(1)); United States v. Van

Horn, 277 F.3d 48, 54-55 (1st Cir. 2002)(18 U.S.C. § 842(i)(1));

United States v. Smith, 292 F.3d 90, 99 (1st Cir. 2002)(18 U.S.C.

§ 922(g)(1)). Application of this same rule in this context makes

abundant sense, as a defendant who, for example, has a concealed

weapon strategically placed in a room where he conducts his drug

business is no less dangerous than a defendant who conducts his

business with a weapon on his person. We therefore hold that a

defendant who has constructively possessed a firearm in connection

with a drug trafficking offense is ineligible for the safety valve

provisions set forth at 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2.

We turn now to whether there was sufficient evidence of

constructive possession. This circuit has consistently defined

constructive possession as follows: "Constructive possession

exists when a person knowingly has the power and intention at a

given time to exercise dominion and control over an object either

directly or through others." Carlos Cruz, 352 F.3d at 510; see

also United States v. Nieves-Burgos, 62 F.3d 431, 437-38 (1st Cir.

1995); United States v. Torres-Maldonado, 14 F.3d 95, 102 (1st Cir.

-15-
1994); United States v. Garcia, 983 F.2d 1160, 1164 (1st Cir.

1993). As is true of actual possession, constructive possession

does not require actual ownership of the weapon, see Liranzo, 385

F.3d at 69, and can be sole or joint, see Van Horn, 277 F.3d at 54-

55.

Moreover, the requisite knowledge and intention can be

inferred from circumstances, such as a defendant's control over the

area where the contraband is found (e.g., defendant's home or

automobile). See Zavala Maldonado, 23 F.3d at 7-8. But knowledge

must be fairly inferable from the circumstances. See id. at 7;

United States v. Booth, 111 F.3d 1, 2 (1st Cir. 1997)(knowing

possession required); see also United States v. Weems, 322 F.3d 18,

24 (1st Cir. 2003)(mere proximity to a firearm is not enough to

establish actual or constructive possession); Garcia, 983 F.2d at

1164 ("Mere presence or association with another who possessed the

contraband is, however, insufficient to establish constructive

possession.") Thus, "[t]here must be some action, some word, or

some conduct that links the individual to the contraband and

indicates that he had some stake in it, some power over it." In re

Sealed Case, 105 F.3d 1460, 1463 (D.C. 1997).

We turn now to each appellant's claim that the district

court erred in concluding that he constructively possessed the

firearm. McLean and Berguette primarily argue that the evidence is

insufficient to ground a finding that they knew of the firearm's

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existence. Feliz concedes that he had knowledge of the firearm,

but challenges the sufficiency of the evidence to ground a finding

that he had the intention and power to exercise dominion and

control over the weapon.

In reviewing a district court's determination that a

defendant failed to qualify for the safety valve, the standard of

review varies depending upon whether the determination is based on

conclusions of law or differential fact-finding. United States v.

Matos, 328 F.3d 34, 38 (1st Cir. 2003). If the former, our review

is plenary; if the latter, we review only for clear error. Id.

Critical to our determination is the evidence that the district

judge considered as to each appellant. Appellants bear the burden

of showing their entitlement to a safety valve reduction. See

United States v. Richardson, 225 F.3d 46, 53 (1st Cir. 2000).

The evidence concerning the .22 caliber handgun came from

three primary sources: Marques' testimony at Navarro's trial;

Agent LaChance's testimony at the consolidated sentencing hearing

for Marques, Feliz, and Berguette; and Feliz's testimony at both

Navarro's trial and the consolidated sentencing hearing.

Marques testified that McLean's brother traded the

unloaded gun for crack about two days before the raid. He further

testified that McLean and Feliz were present during the

transaction, and that he and McLean physically handled the gun. He

recounted that, after the exchange, he placed the gun in the closet

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of the right bedroom. At Navarro's trial, Feliz testified that he

had only been shown the gun the night of the raid by Marques, that

it was unloaded, that Marques put it in his bedroom closet, and

that he did not know who owned it.

Agent LaChance testified that the unloaded .22 caliber

pistol was found in the right bedroom in a small closet on the left

side of the room. He further testified that a picture of Crystal

McLean and two suitcases belonging to Berguette and Feliz were also

found in the closet. On cross-examination, LaChance clarified that

the gun was not in plain view, and he conceded that at least

Feliz's suitcase was actually found in the living room. At the

sentencing hearing, Feliz admitted that Marques had shown him the

gun and that he knew where it was stored, but emphasized that he

and Berguette were staying in the living room rather than the right

bedroom in the days before the raid. He also testified that, at

the time of the raid, his suitcase was in the living room in

anticipation of his imminent departure for Springfield.

1. McLean's Arguments

McLean primarily contends that the district court's

decision cannot stand because McLean had no knowledge of the

firearm. The government responds that the evidence supports the

ruling because the gun was seized from the trailer McLean owned,

the trailer was the focus of the drug operation, McLean and four

co-conspirators were arrested there, McLean knew his co-

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conspirators wanted to acquire guns, and McLean knew that some of

his co-conspirators were armed because they had threatened his

daughter at gunpoint.10

In our view, the record reveals insufficient grounds for

concluding that McLean had knowledge of the .22 caliber pistol.11

He did not stay in the room where the weapon was found. Instead,

at this point in the conspiracy, McLean spent most of his time in

his room. Moreover, because the pistol was not acquired until a

few days before the raid, it could not have been the weapon used to

threaten Crystal McLean in October. Finally, that McLean was aware

that his co-conspirators were interested in 9 mm pistols is not

sufficient evidence that McLean knew that his co-conspirators had

actually acquired a .22 caliber pistol. In sum, we think the

inference of knowledge too tenuous to stand.12

10
McLean's presentence report ("PSR") recounted how the .22
caliber handgun had been found, how McLean had tried to obtain guns
for the drug-selling team members and himself from the CI, and that
Navarro had threatened Crystal at gunpoint.
11
We recognize that Marques' testimony at Navarro's trial
tended to establish that McLean knew about and physically possessed
the firearm. However, there is no indication in the record that
the sentencing judge, who also presided over the Navarro trial,
considered or relied on this evidence in any manner in sentencing
McLean. The government did not make this evidence part of McLean's
sentencing record and did not argue it in any fashion below or on
appeal; thus defense counsel had no opportunity to challenge it.
Therefore, we will not consider this evidence in reviewing McLean's
instant appeal.
12
Moreover, even if McLean had knowledge of the gun, we
question whether there is a basis in the record for finding that he
had the power to exercise dominion and control over it. We have

-19-
 2. Berguette's Arguments

Berguette, like McLean, contends he did not have

constructive possession of the .22 caliber handgun because he was

unaware that the firearm existed. The government argues that such

knowledge can be inferred because Berguette stayed in the room in

which the gun was found, his suitcase was found in the closet with

the gun, and (as recounted in the PSR) Birkbeck stated that the

Berguette had acquired the gun for himself.

As with McLean, there is inadequate evidence to infer

that Berguette had actual knowledge of the gun.13 That the drug-

noted that, when McLean balked at taking Birkbeck's place, Navarro
threatened his daughter at gunpoint. Moreover, both his daughter
and future son-in-law were held as de facto prisoners for McLean's
drug debt. Significantly, the district court specifically found
that McLean was not in control of the drugs or proceeds located in
the same bedroom of the trailer as the gun. These undisputed
facts, coupled with McLean's increased drug use and withdrawal into
his room late in the conspiracy, strongly support a conclusion that
McLean did not exercise dominion and control over his co-
conspirators or their property.
13
As to knowledge, only Birkbeck's statement in the PSR ties
Berguette directly to the firearm. But Berguette challenged the
admissibility of the Birkbeck statement, asserting that the
government never provided the relevant notes to counsel and that
the government represented that it would not rely on the Birkbeck
statement at sentencing. Berguette's counsel renewed this
contention on appeal. So far as the record discloses, this issue
was not expressly resolved in the district court. However, a fair
reading of the sentencing transcript reveals that the Birkbeck
statement was not considered. First, the only statements referred
to at sentencing were those of LaChance, Marques, and Feliz; it is
unlikely that Birkbeck's highly incriminating statement would have
been forgotten by both sides. Second, the government only argued
constructive possession at sentencing, even though Birkbeck's
statement, if credited, demonstrates actual possession.

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selling teams sought 9 mm pistols does not by itself mean Berguette

knew about this .22 caliber pistol. Further, Berguette did not

live in the right bedroom during the period the that gun was in the

trailer, and Agent LaChance's testimony was less than definitive as

to the location of Berguette's suitcase. The most relevant

circumstance is that Berguette participated in drug transactions in

the right bedroom while the handgun was in the closet. But without

more, this is not enough to show knowledge of the hidden gun. As

we have said, mere proximity to a firearm is inadequate to

establish constructive possession. See Weems, 322 F.3d at 24.

This is true even if the defendant is near the gun in a room

devoted to narcotics activity. See Torres-Maldonado, 14 F.3d at

103 (insufficient evidence to support conviction under 18 U.S.C. §

924(c) where there was no evidence that defendant had knowledge of

gun hidden in tote bag on couch where defendant was sitting);

United States v. Pena-Sarabia, 297 F.3d 983, 985 & 989 (10th Cir.

2002)(wife did not possess co-conspirator husband's gun, which he

kept under the couple's bed with cocaine supply, because she had no

knowledge that the gun existed).

3. Feliz's Arguments

Like McLean and Berguette, Feliz argues that the record

fails to establish that he had constructive possession of the

firearm. But unlike McLean and Berguette, Feliz concedes that he

had knowledge of the gun, and focuses on whether there was

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sufficient evidence to find that he met the other elements of

constructive possession. The government responds that Feliz's

knowledge of the weapon, his role in the conspiracy, and the

circumstances of his arrest provide ample evidence to ground the

district court's finding.

It is undisputed that Feliz knew about the gun, knew

where it was hidden, engaged in drug sales in the right bedroom in

close proximity to the hidden weapon, and was arrested in the right

bedroom with crack and drug proceeds around him. As knowledge is

uncontested, the issue is whether the record establishes that Feliz

had the power and intention to exert dominion and control over the

firearm.

The power component is fairly straightforward. Feliz was

close enough to the firearm to pick it up at any time. This is

enough. See Van Horn, 277 F.3d at 55 (power element established

because defendant could reach into adjacent bucket and take

physical possession of the explosives). That Marques was next to

him and capable of doing the same is irrelevant, as possession can

be joint. See id. at 56 ("Exclusive access is not a prerequisite

to possession . . . .")

There is also a sufficient basis for inferring intent.

As a practical matter, Feliz could well have intended to use the

gun for protection in the event of trouble with one of the crack

sales. Cf. Carlos-Cruz, 352 F.3d at 510 (defendants "had power and

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intention to retrieve the firearms if and when the upcoming drug

transactions turned sour"). Further, the gun was among the

proceeds of the drug sales, which Feliz was obliged to protect for

Navarro. Cf. Zavala Maldonado, 23 F.3d at 8 (intent to store and

transfer narcotics to confederate). In sum, Feliz's proximity to

the weapon, coupled with his knowledge of the weapon and role in

the conspiracy, is more than sufficient to establish constructive

possession. Cf. Nieves-Burgos, 62 F.3d at 438 (evidence of

possession sufficient for conviction under 18 U.S.C. §924(c) where

active participant in drug conspiracy arrested in hotel room with

cash, narcotics, and firearm in tote bag two feet from where he

sat).

D. Booker Claims

Appellants Berguette and Navarro filed supplemental

briefs before this case was argued challenging their sentences on

Blakely grounds. Subsequent to argument, the Supreme Court issued

its decision in United States v. Booker, 125 S. Ct. 738 (2005), and

this court issued its decision in United States v. Antonakopoulos,

399 F.3d 68 (1st Cir. 2005). As a consequence, we ordered further

supplemental briefing.

Berguette argues that any Booker error should be deemed

preserved because he sought a downward departure from the

guidelines sentence, Booker error should be deemed a structural

error for which prejudice should be presumed, and there was a

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reasonable probability that he would receive a lower sentence on

remand. As we have already determined that Berguette's sentence

must be vacated and remanded, we need not address his claims.

Navarro argues that he preserved any Booker error, in

effect, by arguing in the district court that the evidence was

inadequate to support an enhancement for Navarro's role in the

offense. Alternatively, Navarro argues that the plain error

standard is met because there is a reasonable probability that

Navarro would receive a lower sentence on remand. In particular,

Navarro argues that the district judge would be free under the new

regime to give more weight to such factors as Navarro's youth, his

prospects for rehabilitation, his lack of guidance, the malignant

influence of his uncle, his responsibilities to his children, and

the much lower sentences received by the other co-conspirators.

A claim of Booker error is preserved "if the defendant

below argued Apprendi or Blakely error or that the Guidelines were

unconstitutional." Antonakopoulos, 399 F.3d at 76. Navarro raised

no such argument below. Thus, Navarro's only hope is to establish

plain error.

To make such a showing, a defendant must demonstrate (1)

an error, (2) that is plain, (3) that affects substantial rights,

and (4) that seriously impairs the fairness, integrity, or public

reputation of judicial proceedings. Id. at 77. The first two

prongs are met if the district court treated the Sentencing

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Guidelines as mandatory during sentencing. Id. As to the third

prong, the defendant must show a "reasonable probability that the

district court would impose a different sentence more favorable to

the defendant under the new 'advisory Guidelines' Booker regime."

Id. at 75. The reasonable probability standard "is not met by the

mere assertion that the court might have given the defendant a more

favorable sentence." Id. at 80. One category of claims that might

warrant remand on plain error review is the one involving arguments

that a mitigating factor existed but was not available for

consideration under the "mandatory" Guidelines. Id. at 81.

Navarro attempts to locate his argument within this category, but

we are not persuaded.

First, Navarro actually made the mitigating arguments

that he now posits before the district court. He does not

elaborate how he could make them more convincingly on remand.

Second, nothing in the transcript indicates that the court was in

any way moved by these arguments. We note that Navarro was

sentenced in the middle of the guideline range, rather than at the

bottom, and so the district court could have given him a lower

sentence under the old regime. That it did not do so speaks

volumes. Also, the court stated that it believed the sentence to

be justified by the vast quantities of drugs that the conspiracy

injected into society, and by Navarro's "arrogant and malicious

attitude toward the well-being of others," as manifested by his

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"terrible threats." There is nothing here that establishes a

reasonable probability of a lower sentence on remand.

III.

For the reasons stated above, McLean and Berguette's

sentences are vacated and their cases are remanded for resentencing

in accordance with this opinion. Feliz's sentence is affirmed, and

Navarro's conviction and sentence are affirmed.

So ordered.

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