United States v. Robinson

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.

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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)

-21-
(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

-22-
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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