United States Court of Appeals
For the First Circuit
No. 04-1432
UNITED STATES OF AMERICA,
Appellee,
v.
FREDRICO TAVARES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard Stearns, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
John H. Cunha, Jr., with whom Charles Allan Hope was on
brief, for appellant.
John T. McNeil, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief,
for appellee.
October 28, 2005
STAHL, Senior Circuit Judge. Fredrico Tavares was
convicted in 2002 on one count of being a felon in possession of a
firearm. He now appeals the district court’s admission into
evidence of certain tape-recorded conversations he had with a
confidential government informant. He also challenges the district
court’s application of a four-point increase to his offense level
under the section of the Federal Sentencing Guidelines allowing
such an increase for a defendant who possessed a firearm with
“reason to believe that it would be used or possessed in connection
with another felony offense.” U.S.S.G. § 2K2.1(b)(5). Finally,
Tavares seeks resentencing in light of the Supreme Court’s decision
in United States v. Booker, 125 S. Ct. 738 (2005), that the Federal
Sentencing Guidelines ranges are advisory rather than mandatory.
We affirm both Tavares’ conviction and his sentence.
I. Background
Tavares was convicted in the United States
District Court for the District of Massachusetts after a
confidential informant arranged the sale of an assault rifle from
Tavares to an undercover agent with the federal Bureau of Alcohol,
Tobacco, and Firearms (“ATF”). The sale of the rifle occurred on
April 27, 2001, but the informant, Neil Baptiste, who was himself
a convict, had, at the behest of the ATF agent, been attempting to
arrange a gun sale with Tavares since January of that year. In
January, Baptiste called Tavares several times, indicating that he
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wished to acquire a firearm and asking about setting up a sale.
Four of the January telephone conversations between Baptiste and
Tavares were recorded and, over objection, the recordings were
admitted into evidence at the trial.
The jury convicted Tavares. At his sentencing
hearing, the court found that Tavares had reason to believe that
the weapon he sold to the undercover ATF agent would be used in
connection with a subsequent felony. The court accordingly
enhanced Tavares’ offense level by four points, yielding a
sentencing range under the Guidelines of 97¯120 months. In seeking
mitigation of his potential sentence, Tavares spoke about his
ailing parents and described how he had supported himself through
college and had never belonged to a gang. Responding, the district
judge stated,
My inclination was to sentence to the maximum,
120 months. I am going to give, on the basis
of what Mr. Tavares said, some benefit and
respect for his statement that he is ready to
change his life. There is not much I can do,
but I will impose a sentence at the mid-point
of that range rather than the maximum.
The judge then imposed a sentence of 108 months in prison. Tavares
appealed his conviction and sentence.
II. Discussion
Before us on appeal are three issues: (1) whether
the district court improperly admitted the evidence of the January
telephone conversations, (2) whether the district judge erred in
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enhancing Tavares’ offense level, and (3) whether Tavares is
entitled to a remand for resentencing under Booker. We consider
each issue in turn.
A. The January Conversations
Tavares contends that the district court should
have excluded the taped January conversations under Federal Rule
of Evidence 404(b), which deems evidence of a defendant’s past
acts inadmissible to prove the defendant acted in conformity with
a certain character trait in the charged case. See Fed. R. Evid.
404(b). We review a district court’s decision to admit disputed
evidence for abuse of discretion. See United States v. Flemmi,
402 F.3d 79, 86 (1st Cir. 2005).
Although Rule 404(b) prohibits the use of past-
acts evidence for propensity purposes, it does permit a party to
introduce such evidence for “other purposes”; commonly cited
acceptable purposes include proof of knowledge, intent, motive,
and opportunity. Fed. R. Evid. 404(b). Here, the government
argues that it introduced the January telephone conversations to
show Tavares’ knowledge about illicit firearms dealing and intent
to conduct an illicit gun deal, rather than to show propensity.
Tavares counters that because the January conversations concerned
a potential sale of a gun to Baptiste, whereas the actual sale
some months later was made to the ATF agent (with Baptiste acting
as go-between), it is improper to impute Tavares’ mental state on
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the earlier occasion to the later, consummated transaction. This
characterization, however, ignores that the January conversations
tend to establish that Tavares knew how to conduct a weapons sale
and expressed willingness to do so, which are relevant and
permissible factors regardless of the identity of the purchaser.
The district court’s conclusion that the January
conversations served the permissible purposes of proving knowledge
and intent was not an abuse of discretion.
B. The Increased Offense Level
Tavares next claims the trial court wrongly
concluded that he had reason to believe the assault rifle he sold
to the undercover ATF agent would be used or possessed in
connection with another felony. We review a district court’s
factual determinations under the Sentencing Guidelines for clear
error. United States v. Nunez, 146 F.3d 36, 40 (1st Cir. 1998).
In making its determination, the district court
relied on factors including the nature of the weapon, the
clandestine nature of the sale, and the fact that the sale price
of $1800 was more than six times the market value of the weapon.
The court also considered the statements Baptiste made to Tavares
in January1 that he wanted to acquire a gun in order to deal with
1
As noted earlier, Baptiste was not the actual purchaser of
the gun in April, but he orchestrated the sale and acted as
intermediary. Thus, the motives he expressed to Tavares in the
January negotiations contributed to Tavares’ overall expectations
about how the gun would be used.
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various people with whom he “got beef” and that he was “ready to
shoot” those people. Taken together, these factors provide ample
support for the district court’s conclusion. There was no clear
error.
C. Applicability of Booker
Because Tavares did not raise any objection to his
sentence below, his Booker claim is not preserved and he bears the
burden of showing plain error. United States v. Antonakopoulos,
399 F.3d 68, 77 (1st Cir. 2005). In this context, a defendant
must show a “reasonable probability” that the trial judge would
have sentenced differently under an advisory guidelines regime.
Id. at 79. Although “we are not inclined to be overly demanding
as to proof of probability,” the burden remains on the defendant
to demonstrate a “reasonable indication that the district judge
might well have reached a different result” had the mandatory
system not been in place. United States v. Heldeman, 402 F.3d
220, 224 (1st Cir. 2005).
Tavares emphasizes the statement made by the
district judge at the sentencing in response to Tavares’
description of his mitigating family and personal circumstances.
Indicating a desire to credit Tavares’ personal statement, the
judge stated, “There is not much I can do, but I will impose a
sentence at the mid-point of [the Guidelines] range” instead of
the maximum the judge had initially intended to impose. This
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statement is ambiguous: it could be a simple recognition of the
constraints the Guidelines then imposed, or it could indicate the
judge’s view of Tavares’ criminal history. Either way, we do not
interpret this statement as indicating a likely different result
under advisory Guidelines, especially since no other statement
made at the sentencing hearing supports Tavares’ position.
In addition, Tavares received a mid-range sentence
(108 months from a range of 97-120 months). This court treats the
fact that a defendant was given a middle-of-the-range sentence as
one factor, but not the deciding factor, in analyzing whether the
Antonakopoulos standard is met. See United States v. Gonzalez-
Mercado, 402 F.3d 294, 304 (1st Cir. 2005) (“When, under a
mandatory guidelines regime, a sentencing court has elected to
sentence the defendant substantially above the bottom of the
range, that is a telling indication that the court, if acting
under an advisory guidelines regime, would in all likelihood have
imposed the same sentence.”). Here, the mid-range sentence is not
paired with any persuasive evidence indicating the court might
have sentenced differently under an advisory regime. See United
States v. Baskin, __ F.3d __, __ (1st Cir. 2005) (denying Booker
remand where defendant was allowed to present mitigating evidence
at sentencing hearing, judge imposed mid-range sentence, and
nothing else in the record indicated a different outcome would be
likely under advisory Guidelines).
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III. Conclusion
The conviction and sentence are affirmed.
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