United States Court of Appeals
For the First Circuit
No. 05-1650
UNITED STATES OF AMERICA,
Appellee,
v.
TAVON ROBINSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti Saris, U.S. District Judge]
Before
Lynch, Circuit Judge,
Siler,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Ben T. Clements, with whom Ingrid S. Martin and Clements &
Clements, LLP, were on brief, for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for the
United States.
January 11, 2007
*
Of the Sixth Circuit, sitting by designation
SILER, Senior Circuit Judge. Defendant Tavon Robinson was
convicted of conspiracy to possess with intent to distribute and to
distribute cocaine, 21 U.S.C. § 846; possession with intent to
distribute and distribution of cocaine, 21 U.S.C. § 841(a)(1);
being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1);
and possessing a firearm in furtherance of a drug trafficking
offense, 18 U.S.C. § 924(c)(1)(A).
Robinson appeals both firearms convictions and his sentence,
alleging prosecutorial misconduct, insufficient evidence, and
improper sentencing. We AFFIRM.
I.
In 2004, DEA Special Agent David DiTullio agreed to purchase
two ounces of crack cocaine for $2,350 from Adam Ellard as part of
an undercover drug investigation. Unable to locate any crack
cocaine for the deal, Ellard contacted Willie Hester, whom he had
seen packaging crack on a previous occasion with another man,
Norman Barnes. Hester agreed to sell Ellard sixty-two grams of
crack cocaine, but conditioned the sale on his accompanying Ellard
to the deal.
Hester picked up Ellard in a Honda, followed by a Ford1 with
New Hampshire plates. The Ford had three occupants: Robinson in
the driver’s seat, Stephen Tucker in the front passenger seat, and
1
The Ford was rented to Cleo Mercer, the sister of Stephen
Tucker.
-2-
Barnes in the back. The two cars traveled to a parking lot in
Dorchester to complete the deal with DiTullio. Ellard exited the
Honda and entered the passenger side of DiTullio’s vehicle. He
told DiTullio that the crack cocaine was in the Ford and requested
the $2,350. DiTullio showed Ellard the money, let him count it,
but would not give it to him unless he produced the crack cocaine.
Ellard returned to the Honda to consult with Hester, who told him
to go speak with Barnes in the Ford. Barnes informed Ellard he
would not produce the drugs without any money. In an attempt to
compromise, Ellard had DiTullio back his vehicle up to the rear of
the Ford. DiTullio again refused to give Ellard the money without
the drugs.
Frustrated at the stalled deal, Robinson exited the driver’s
seat of the Ford, walked to the front of the hood for a few
moments,2 and then proceeded to DiTullio’s vehicle. Speaking with
DiTullio through the passenger window, Robinson removed a clear
2
Conflicting testimony was presented at trial regarding
Robinson’s conduct in exiting the car and moving to the front of
the hood. Ellard testified that Robinson unlatched the hood from
inside, reached between the hood and the grill stating, “I’m
looking for something,” but closed the hood without removing
anything. DEA Group Supervisor Richard Guerard, who conducted
surveillance of the transaction, testified that Robinson opened the
hood “about five or six inches” and then closed it. DiTullio
testified that Robinson opened the hood approximately one-quarter
of the way, removed an item and put it in his jacket pocket. Agent
Steven Story, who also conducted surveillance, testified that
Robinson opened the hood approximately eighteen inches, but shut it
without removing anything.
-3-
plastic bag3 from his jacket pocket and placed it on the front
passenger seat. DiTullio gave Robinson the money, and Robinson
began walking back to the Ford. As law enforcement officers moved
in for an arrest, Robinson fled briefly before being apprehended.
He was arrested and police found $2,350 and a clear plastic bag
containing marijuana and crack cocaine in his possession.
After seizure of the Ford, an inspection at a garage revealed
two loaded semiautomatic pistols wrapped in a T-shirt and hidden
inside a small space in front of the engine compartment near the
front of the hood.4
The next day, Officer Conners overheard Robinson and Barnes
conversing in their shared holding cell. According to Officer
Conners, Robinson remarked to Barnes, “It’s not crack anyway. It’s
only coke. They’ll find that out when they do the lab tests.”
Officer Conners also heard Robinson tell Barnes that “When they
came from everywhere, I could have gone boom, boom.”
At trial, in his opening statement, Robinson’s counsel
admitted his client’s guilt on the drug charges,5 but argued that
3
The parties stipulated at trial that the clear plastic bag
contained 28.2 grams of crack cocaine.
4
Agent Story testified that Robinson would have access to the
space where the pistols were hidden with the hood partially open.
Gloucester Police Officer Sean Conners also testified that the
space was accessible if the hood was only open three to six inches.
5
Robinson pled guilty to the drug charges on the morning of
the third day of the trial.
-4-
he was unaware of the firearms’ presence. Robinson was convicted
on both firearms charges. The district court denied Robinson’s
motion for judgment of acquittal and sentenced him to 137 months.6
II.
Claims for prosecutorial misconduct are reviewed under the
harmless error standard if the defendant contemporaneously objected
to challenged statements. United States v. Auch, 187 F.3d 125,
128-29 (1st Cir. 1999). If no objections were made, challenged
statements are reviewed for plain error. United States v. Sanchez-
Berrios, 424 F.3d 65, 73 (1st Cir. 2005). We review de novo
whether a challenged statement by the prosecutor during closing
argument was improper. Whether the misconduct, if any, warrants a
new trial is reviewed for an abuse of discretion. United States v.
Nelson-Rodriguez, 319, F.3d 12, 38 (1st Cir. 2003).
We review claims of insufficient evidence de novo. United
States v. Hall, 434 F.3d 42, 49 (1st Cir. 2006). A conviction will
be affirmed “if, after assaying all the evidence in the light most
amiable to the government, and taking all reasonable inferences in
its favor, a rational factfinder could find, beyond a reasonable
doubt, that the prosecution successfully proved the essential
elements of the crime.” United States v. Perez-Gonzalez, 445 F.3d
6
Robinson was sentenced to 77 months concurrently for the drug
charges and being a felon in possession of a firearm. He was also
sentenced to 60 months for possessing a firearm in furtherance of
a drug trafficking offense.
-5-
39, 48 (1st Cir. 2006). We also review de novo claims that the
district court committed errors of law at sentencing. United
States v. Pho, 433 F.3d 53, 60 (1st Cir. 2006).
III.
Robinson raises three issues on appeal: prosecutorial
misconduct, insufficient evidence, and improper sentencing. We
address each issue in turn.
A.
Robinson’s first argument is that the prosecution repeatedly
engaged in a pattern of misconduct during both cross-examination
and closing argument when it systematically portrayed him as a
habitual drug user and career drug dealer. He contends that the
government’s questions about the drug deal with DiTullio and
repeated questions and references to his prior history of drug
trafficking constitute reversible error because they confused the
jury into convicting him on the gun charges based mostly on his
prior history of drug trafficking.
Robinson argues that the government improperly elicited
prejudicial testimony regarding the drug deal with DiTullio.
According to Robinson, such testimony was unnecessary because he
never challenged his guilt: defense counsel informed the government
prior to trial that he would not deny his role in the drug deal
with DiTullio, defense counsel’s opening statement conceded his
guilt to the drug trafficking charges, at no time during the trial
-6-
did he otherwise contest his guilt, and on the morning of the third
day he entered guilty pleas to both drug charges. Thus, he argues,
the government was relieved of its burden to prove that Robinson
engaged in drug trafficking as part of its charge that he possessed
a firearm in furtherance of a drug trafficking offense. Robinson
contends that the sole reason the government focused on this drug
deal was to make the jury believe it was to convict him for his
drug trafficking activities and not the firearms charges.
This argument is unavailing for several reasons. First,
although he conceded his role in the drug deal with DiTullio prior
to trial and during his opening statement, Robinson remained free
to change his mind whether he would contest both drug trafficking
charges at some point in the trial. He did not formally enter
guilty pleas to both charges until the morning of the third day of
trial, and until that time the government still had the burden to
prove his guilt beyond a reasonable doubt. Therefore, it was
proper to present evidence that Robinson engaged in drug
trafficking.
Robinson claims the government also engaged in misconduct when
it repeatedly questioned him about his prior drug use and
involvement in drug trafficking during his cross-examination and
when it returned to this theme in closing arguments. He argues
that these questions and closing statements constitute misconduct
and violate FED . R. EVID . 404(b).
-7-
On several occasions during Robinson’s cross-examination, the
government attempted to question him about his history in dealing
and using drugs.7 At a sidebar after repeated defense objections,
the government told the district court that it was not inquiring
about prior bad acts, but rather showing that Robinson knew about
the dangers of dealing drugs in order to prove the “in furtherance”
element of possessing a firearm in furtherance of a drug
trafficking offense. Several times after the sidebar, the
government again attempted to ask Robinson about his drug dealing
history in an effort to prove why he would bring a gun to a drug
deal and how he knew prices of drugs.
Evidence of “a defendant’s other bad acts [is proper] only if
that evidence meets the requirements of both Rule 404(b) and Rule
403.” United States v. Tse, 375 F.3d 148, 155 (1st Cir. 2004).
Rule 404(b) evidence must be “specially relevant” and cannot
“include bad character or propensity as a necessary link in the
inferential chain.” United States v. Flemmi, 434 F.3d 7, 12 (1st
Cir. 2005). Even assuming that the district court properly
excluded the government’s questions to Robinson about his prior
history, Robinson cannot show prejudice from these questions.8
7
Robinson objected to some questions along this line, but not
all.
8
Because of Robinson’s inconsistent objections to this line of
questioning, the plain error and harmless error standards apply to
different questions. However, as discussed infra, Robinson cannot
make a showing of prejudice under the lesser harmless error
-8-
Robinson claims that the mere asking of these questions was
prejudicial. See United States v. Meserve, 271 F.3d 314, 326 (1st
Cir. 2001) (“[T]he question itself may nevertheless prejudice a
defendant because of the weight a jury gives to the questions asked
by a prosecutor.”). However, Robinson never answered many of the
questions because the court sustained his objections. Thus, the
required showing of prejudice becomes more difficult. See id.
(noting that where challenged questions are left unanswered, the
harmless error analysis is likely to weigh in favor of the
appellee); see also United States v. Inamorati, 996 F.2d 456, 485
(1st Cir. 1993) (prejudicial effect of challenged questions
lessened when questions were not answered).
In response to a question asked without objection, Robinson
admitted that it was not out of the ordinary for him to be selling
drugs. Moreover, on the third day of the trial, Robinson pled
guilty to the two drug charges. At this point, the jury had heard
considerable evidence regarding Robinson’s drug deal with DiTullio.
Therefore, it is difficult to see how the questions prejudiced
Robinson.
Robinson cites to two main cases to support his contention
that reversal is required. However, these cases are
distinguishable. First, he cites United States v. Crawford, 438
F.2d 441 (8th Cir. 1971). In that case, the prosecution asked
standard.
-9-
questions insinuating that the defendant was a member of a group of
narcotics users and sellers. The court found reversible error, in
part, because the only purpose in asking those questions was to
“degrade the defendant and to prejudice the jury against him.” Id.
at 444-45. Here, the government did have a legitimate purpose in
asking the questions: to provide the jury with a reason why
Robinson would bring a firearm to a drug deal. The misconduct
inherent in the baseless attacks in Crawford is not present here.
Robinson similarly cites to United States v. Newman, 49 F.3d
1 (1st Cir. 1995). In that case, we found error in the
government’s questions of whether the defendant knew what a “con
man” or “confidence game” was. As was the case in Crawford, we
found the government had “no justifiable purpose for that line of
questioning, other than, as [the defendant] suggests, to discredit
him by insinuation.” Id. at 8. Again, the same is not true here
because the government did have a legitimate reason for pursuing
its line of questioning.
Robinson next claims the prosecution committed reversible
error when it asked him on cross-examination whether two law
enforcement witnesses lied on the witness stand. Agent Genese had
testified that when he asked Robinson whether he knew the cocaine
he sold to DiTullio was real or fake, Robinson responded that he
did not know. During Robinson’s cross-examination, he denied
-10-
saying that he was unsure what he sold. The prosecution then asked
him if Agent Genese was lying.9
At another point, Officer Conners testified that he heard
Robinson state that when the officers surrounded him just prior to
his arrest, he could have gone “boom, boom.” During Robinson’s
cross-examination, he denied making the statement and responded
that Officer Conners could have been mistaken. The government then
asked Robinson if Conners was lying, to which he answered that he
did not know and was unable to say.10
“This Court has held it is improper for an attorney to ask a
witness whether another witness lied on the stand.” United States
v. Thiongo, 344 F.3d 55, 61 (1st Cir. 2003) (citing United States
v. Gaines, 170 F.3d 72, 81 (1st Cir. 1999)) (noting that such
practice is improper because credibility judgments are for the
jury). Furthermore, “[g]iven the faith that the jury may place in
the word of a law enforcement officer, it is unfair to force a
criminal defendant to choose between recanting and calling a law
officer a liar.” United States v. Fernandez, 145 F.3d 59, 64 (1st
Cir. 1998).
Because Robinson objected to the government’s question asking
whether Agent Genese was lying, it is reviewed for harmless error.
9
Robinson objected to this question, which the court
sustained.
10
Robinson did not object to this question.
-11-
See United States v. Sullivan, 85 F.3d 743, 750 (1st Cir. 1996)
(analyzing a similar question under the harmless error standard).
While the question was improper, any resulting error was harmless
because the district court sustained Robinson’s objection and
relieved him from answering. Robinson was not forced “to choose
between recanting and calling a law officer a liar.” Fernandez,
145 F.3d at 64. The only benefit the government gained from the
question was highlighting the discrepancy between the testimony of
Agent Genese and Robinson. As was the case in Sullivan, “[t]hat
there was a contradiction between [Robinson’s] testimony and [Agent
Genese’s] was obvious. Pointing out the obvious most likely scored
the government, at most, rhetorical points.” Sullivan, 85 F.3d at
750.
Robinson did not object when the government asked him if
Officer Connors was lying. Therefore, we review this question for
plain error.11 See Fernandez, 145 F.3d at 64. “[T]o constitute
plain error [the questions] must have affected the outcome of the
district court proceedings.” Id. The prosecution’s question here
11
The government’s question to Robinson whether Officer Conners
was “mistaken” was proper. See Gaines, 170 F.3d at 81-82 (citing
United States v. Gaind, 31 F.3d 73, 77 (2d Cir. 1994) (“Asking a
witness whether a previous witness who gave conflicting testimony
is ‘mistaken’ highlights the objective conflict without requiring
the witness to condemn the prior witness as a purveyor of
deliberate falsehood, i.e., a ‘liar.’”)).
-12-
was not plain error because Robinson fails to show prejudice.12
Similar to the question about Agent Genese’s testimony, this
question merely drew the jury’s attention to the discrepancy
between Robinson’s and Officer Conner’s testimony. Thus, it is
difficult to imagine that “the improper framing of these
unobjected-to questions affected the outcome of the trial.”
Fernandez, 145 F.3d at 65.
Robinson also argues that the government continued to
impermissibly vouch for the law enforcement officers in its closing
argument. In relevant part, the prosecutor argued:
Ladies and gentleman, if you believe that the officers of
the United States, if you believe that these agents got
on that stand with all those years of experience and in
the face of their oath stood up there and lied in their
testimony and you believe they did that, then acquit the
defendant. Then acquit the defendant.
Because there was no contemporaneous objection, we review for
plain error. United States v. Wilkerson, 411 F.3d 1, 7 (1st Cir.
2005). Improper vouching occurs when the government “place[s] the
prestige of the United States behind a witness by making personal
assurances about the credibility of a witness,” United States v.
Rosario-Diaz, 202 F.3d 54, 65 (1st Cir. 2000), or implies “that the
jury should credit the government’s evidence simply because the
government can be trusted.” United States v. Perez-Ruiz, 353 F.3d
12
In fact, Robinson’s brief seemingly concedes no inherent
prejudice in this particular question. (“While these questions in
isolation may not have been reversible error . . . .”).
-13-
1, 9 (1st Cir. 2003). The government’s statement in this case did
neither and does not constitute plain error.
The government’s statement merely invited the jurors to acquit
Robinson if they believed that Agent Genese and Officer Conners
were lying. This is not the type of improper vouching present in
Rosario-Diaz or Perez-Ruiz because the government neither made
statements about the witnesses’ credibility nor implied that they
could be trusted based on their affiliation with the United States.
Moreover, these statements do not rise to the level of plain error.
See Wilkerson, 411 F.3d at 8 (no plain error where prosecutor’s
rebuttal included statement that officers “didn’t stretch the truth
here”); Sullivan, 85 F.3d at 751 (no plain error where government’s
closing argument stated that one witness “came off pretty
believable,” another “couldn’t have lied about anything,” and that
all of them “were telling the truth”).
In addition to arguing that the government improperly vouched
for law enforcement witnesses in its closing argument, Robinson
alleges other instances of prejudice in the government’s summation.
Because he failed to object to the government’s closing argument,
we review for plain error. Sullivan, 85 F.3d at 751. We “will not
notice error unless it caused ‘a miscarriage of justice’ or
seriously undermined ‘the integrity or public reputation of
judicial proceedings.’” United States v. Joselyn, 99 F.3d 1182,
1198 (1st Cir. 1996); see also United States v. Taylor, 54 F.3d
-14-
967, 977 (1st Cir. 1995) (referring to this standard as “hard-to-
satisfy”).
Robinson claims that the government’s first statement in its
closing argument directed the jury to convict him based on his
alleged life of crime rather than his alleged possession of
firearms.13
While “arguments urging a jury to act in any capacity other
than as the impartial arbiter of the facts in the case before it
are improper,” United States v. Manning, 23 F.3d 570, 574 (1st Cir.
1994), the government’s closing argument in this case did not
request the jury to act in that manner. “In assaying the
appropriateness of a prosecutor’s remarks, context frequently
determines meaning.” United States v. Sepulveda, 15 F.3d. 1161,
1187 (1st Cir. 1993). Here, the discussion following the
challenged statement focused on the facts attendant to Robinson’s
arrest, not to his prior drug dealing. The government then spoke
for some time about the fundamentals of the law of the case before
it mentioned Robinson and his alleged life of crime. Even when the
government did mention his prior history, it constituted only a
small portion of the entire summation. Taken in context, the
prosecutor’s remarks are not plain error.
13
The government’s closing argument began: “There comes a time
in every man and woman’s life that they must be held accountable
for their actions. That time for this defendant, Tavon Robinson,
is here and now.”
-15-
Robinson next alleges that the government’s closing argument
impermissibly returned to his history as a drug dealer. Robinson’s
brief selectively excerpts sentences from the government’s
summation and dissects each sentence to arrive at his conclusion
that the closing was plain error. However, we must view the
context of the remarks in determining whether error exists. Id.
Viewed accordingly, these remarks are not plain error. The
government’s closing argument focused on the uncertainty
surrounding the drug deal and the notion that drug dealers,
including Robinson, bring guns to drug deals to protect themselves.
The government merely repeated what Robinson admitted to, without
objection, on cross-examination: that he knew the “ways of the
world” and about drug deals in general.
The closest the government came to impermissibly prejudicing
the jury in its closing argument was when it concluded its
rebuttal:
I would suggest to you, ladies and gentlemen . . . that
[Robinson is] guilty of possessing those guns in
furtherance of that drug deal in which anything could
have happened and probably something would have happened
had it been a real drug dealer and not a DEA undercover
agent who was getting ripped off by the defendant.
While it is improper to “needlessly arouse the emotions of the
jury,” United States v. Pirovolous, 844 F.2d 415, 425 (7th Cir.
1988), by resorting to unsupported hypotheticals, the error here
does not result in a “miscarriage of justice.” The court
instructed the jury that same afternoon that closing arguments were
-16-
not to be considered as evidence. Therefore, the hypothetical was
not plain error. See United States v. Procopio, 88 F.3d 21 (1st
Cir. 1996) (no plain error, in light of a curative instruction,
despite only circumstantial evidence of guilt and “seriously
careless” comment by prosecutor).
Robinson argues that even if any of the alleged prosecutorial
errors do not, by themselves, require reversal, the totality of the
government’s misconduct compels the conclusion that Robinson was
denied a fair trial. We do not accept Robinson’s premise that
every evidentiary error in a criminal trial amounts to government
misconduct. Nevertheless, for ease, we will use the misconduct
test to address his arguments.
We weigh several factors in determining “whether prosecutorial
misconduct has so poisoned the well that a new trial is required:
(1) the severity of the misconduct; (2) the context in which it
occurred; (3) whether the judge gave any curative instructions and
the likely effect of such instructions; and (4) the strength of the
evidence against the defendant.” United States v. Casas, 425 F.3d
23, 38 (1st Cir. 2005), cert. denied, 126 S. Ct. 1670 (2006). This
analysis focuses on the underlying fairness of the trial. Meserve,
271 F.3d at 332. In this case, the government’s actions do not
require reversal.
First, the government’s conduct was not as severe as Robinson
alleges. While some of the prosecutor’s questions regarding
-17-
Robinson’s history of drug dealing may have been improper, their
sole purpose, unlike in Newman, was not to paint Robinson as an
evil character, but to show his motivation for carrying a firearm
to a drug deal. The government also appealed to the jury’s
emotions in closing, perhaps needlessly, but considering the
context of the entire closing argument and rebuttal, the statements
were not highly prejudicial.
Second, we should look at the time when the alleged misconduct
occurred. The government properly elicited testimony about the
drug deal with DiTullio because at the time it asked those
questions, Robinson had not yet formally pled guilty to those
charges. Once Robinson entered a formal guilty plea, the
government shifted its focus from the drug deal to the gun
possession. Therefore, the government did not cause the jury to be
unnecessarily focused on the drug charges and the questions did not
heighten prejudice or create confusion as Robinson suggests.
Third, while the district court gave no curative instructions,
Robinson requested none. The district court did give general
instructions before deliberations regarding what the jury could and
could not consider as evidence, including questions with sustained
objections, opening statements, and closing arguments.
Finally, evidence of Robinson’s guilt was neither
exceptionally weak nor exceptionally strong. The government
introduced sufficient evidence to convict Robinson on the firearms
-18-
charges, but this evidence did require a finding of constructive
possession.
Taking these factors together, Robinson was not sufficiently
prejudiced to entitle him to a new trial. The underlying fairness
of the trial was not compromised because, although there may have
been error, it was not sufficiently linked to the outcome so as to
require a new trial.
B.
Robinson next argues that the government failed to produce
sufficient evidence at trial to prove that he knowingly possessed
a firearm in furtherance of a drug trafficking crime. He contends
that the evidence indicates that he had no role in hiding the guns
or was even aware of their existence.
In order to prove possession of a firearm, the government must
show actual possession or constructive possession. Constructive
possession “exists when a person knowingly has the power and
intention at a given time to exercise dominion or control over the
area where the contraband is found.” United States v. McLean, 409
F.3d 492, 501 (1st Cir. 2005) (internal quotations marks and
citations omitted). “[T]he requisite knowledge and intention may
be inferred from circumstances . . . . [b]ut knowledge must be
fairly inferable from the circumstances.” Id. (citing United
States v. Zavala Maldonado, 23 F.3d 4, 7 (1st Cir. 1994)).
“Constructive possession of a firearm may be established by showing
-19-
that the person knows (or has reason to know) that the firearm is
within easy reach, so that he can take actual possession of it
virtually at will.” United States v. Lamare, 711 F.2d 3, 5-6 (1st
Cir. 1983).
The evidence was sufficient to permit a rational jury to
conclude that Robinson constructively possessed the firearms found
in the engine compartment. First, even though the evidence showed
that Robinson neither rented the Ford in which the firearms were
found, nor owned the firearms,14 constructive possession does not
require ownership of either the guns or the area in which they are
located. All that is necessary is that the defendant knowingly
have the ability and intent to exercise dominion and control of the
firearm or area where it is located. See United States v.
Carpenter, 403 F.3d 9, 10 (1st Cir. 2005).
A rational jury could have concluded that Robinson had the
ability and intent to exercise dominion and control of the firearms
for several reasons. Even though the Ford was rented to Mercer,
Robinson’s relationship with Tucker provided him with ample
opportunity to store the guns in the engine compartment. Evidence
was presented that Robinson and Tucker were friends, that Mercer
left the keys to the Ford in various locations around the house
where Tucker and Robinson would have easy access to them, and that
14
Evidence showed that Tucker purchased one of the pistols from
Daniel Clagon.
-20-
Robinson was part of a group who was to drive the Ford to New
Jersey for a trip.
Second, a rational jury could have interpreted Robinson’s
statement to Barnes in the holding cell that “When they came from
everywhere, I could have gone boom, boom,” to mean that Robinson
could have shot the agents using the firearms found in the Ford.
Robinson contends that even if the evidence was sufficient to
prove that he knowingly possessed firearms, there was insufficient
evidence to prove that he possessed the firearms in furtherance of
a drug trafficking offense.
Under 18 U.S.C. § 924(c), the government must prove that the
firearm was possessed “to advance or promote the commission of the
underlying offense. The mere presence of a firearm in an area
where a criminal act occurs is not a sufficient basis for imposing
[the] mandatory sentence [under §924(c)].” United States v. Grace,
367 F.3d 29, 35 (1st Cir. 2004). There must be some sufficient
nexus between the firearm and the drug trafficking offense. While
a sufficient nexus is more readily found in cases where the firearm
is in plain view and accessible to the defendant during a drug
trafficking offense, see United States v. Felton, 417 F.3d 97, 106
(1st Cir. 2005); United States v. Garner, 338 F.3d 78, 91 (1st Cir.
2003), we have found a sufficient nexus to exist where the drugs
and firearms were not jointly located and easily accessible. See
United States v. Carlos Cruz, 352 F.3d 499, 509 (1st Cir. 2003)
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(rifles located inside a nearby trash can and covered with blankets
while drugs were located on defendant’s person). In these cases,
we weigh several factors: whether the firearm was loaded, whether
the firearm was easily accessible, the proximity of the firearm to
the drugs, and the surrounding circumstances. Id.
Here, the jury had ample reason to conclude that Robinson
possessed the firearms in furtherance of the drug deal with
DiTullio. Both firearms hidden in the Ford were loaded and were
accessible by Robinson during the drug deal with DiTullio. All
Robinson had to do to gain actual possession of the firearms was to
open the Ford’s hood three to six inches and reach inside the
engine compartment. Moreover, because Robinson had the drugs on
his person when he was inside the car and subsequently opened the
hood, the firearms were within close proximity to the drugs. Also,
a jury could have concluded that Robinson was in charge of the drug
deal and that the firearms were available if necessary because
Robinson drove the car and took charge when the drug deal appeared
as if it would not happen. Therefore, sufficient evidence existed
for the jury to find that Robinson possessed the firearms in
furtherance of a drug trafficking offense.
C.
Robinson’s final claim is that the district court erred at
sentencing. He contends that “[t]he district court erroneously
believed it was constrained by the United States Sentencing
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Guidelines (‘Guidelines’) when it sentenced” him to 137 months.
Specifically, he points to the district court’s comment that “I
think that -- I don’t have a whole lot of discretion here. I --
but I don’t see any reason to go to the high end of the advisory
guideline range. I think 137 is the lowest I can do with the [60-
]month consecutively-run sentence,” as evidence that the district
court misapprehended its discretion under the Guidelines.
Since Booker v. United States, 543 U.S. 220 (2005), we have
held that district courts must continue to consider the Guidelines
sentencing range in calculating reasonable sentences. United
States v. Jimenez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006) (en
banc). This consideration should include “the guideline range, any
proposed departures, followed by the further determination whether
other factors identified by either side warrant an ultimate
sentence above or below the guideline range.” Id. at 518-19. If
a sentence falls outside the Guidelines range, the district court
must provide justification, which may be either express or
inferred. Id. at 519.
Robinson’s claim fails for two reasons. First, the district
court clearly understood Booker’s holding because it explicitly
referred to the Guidelines range as “advisory” in determining
Robinson’s sentence. Second, the district court’s statement
regarding its apparent lack of discretion does not appear to refer
to its inability to depart downward under the Guidelines because of
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their mandatory nature. Rather, that statement reflects the
district court’s conclusion that after considering all relevant
sentencing factors, it could not provide adequate reasoning for
imposing a sentence below the advisory Guidelines range. In order
to depart downward the district court would have been required to
give an express or implied reason for doing so, and it felt it
could not do so based on the evidence presented at sentencing.
During Robinson’s sentencing, the district court remarked that it
was troubled by Robinson’s belief that this case “was no big deal,”
his inability to stay out of trouble at home, and his apparently
fabricated testimony. Considering these statements in light of the
record, see Jimenez-Beltre, 440 F.3d at 519, as well as the
district court’s characterization of the Guidelines as “advisory,”
we find no error.
IV.
For these reasons, we AFFIRM Robinson’s convictions and
sentence.
Affirmed.
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