United States v. Fermin

United States Court of Appeals
For the First Circuit

No. 13-1108

UNITED STATES,

Appellee,

v.

CHARLES FERMIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Lynch, Chief Judge,
Stahl and Barron, Circuit Judges.

Charles W. Rankin with whom Audrey M. Grace, Kerry A.
Haberlin, and Rankin & Sultan were on brief, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.

November 14, 2014
 STAHL, Circuit Judge. After a jury trial, Defendant-

Appellant Charles Fermin was convicted of possession with intent to

distribute both marijuana and cocaine, and acquitted of possession

of a firearm in furtherance of a drug-trafficking offense. On

appeal, Fermin contests the denial of his motion to suppress and

the sufficiency of the trial evidence, and alleges error in the

jury instructions and sentence enhancements imposed. Finding no

reversible error, we affirm Fermin's convictions and sentence.

I. Facts & Background

Because Fermin challenges the sufficiency of the evidence

on appeal, we set forth the evidence in the light most favorable to

the jury verdict. United States v. Clemens, 738 F.3d 1, 3 (1st

Cir. 2013).

On January 6, 2012, members of the High Intensity Drug

Trafficking Area task force ("HIDTA task force"), a unit of the

Rhode Island State Police, were conducting surveillance near the

Providence College campus. Fermin was observed walking down

residential Liege Street empty-handed, wearing a garbage bag

underneath a red sweatshirt, before disappearing out of sight

between two houses, 40 and 48-50 Liege Street. He emerged three to

four minutes later rolling a large black suitcase.

Looking around as if to check if anyone was walking

behind him, Fermin wheeled the suitcase the same way he had just

come and entered a nearby parking lot. He made his way to the far

-2-
end of the lot, where he placed the suitcase between a Jeep and a

cement wall. He then stepped away from the suitcase and began to

talk on a cell phone. Between conversations, he slid the suitcase

under the Jeep and removed the sweatshirt he was wearing. Several

minutes later, Fermin retrieved the suitcase, tied his sweatshirt

around the handle, and exited the parking lot with the suitcase in

tow.

Police stopped Fermin on the street shortly thereafter

and asked to speak with him about the suitcase. Fermin immediately

dropped his cargo and said that it was not his. He told police

that he had been running at the Providence College track when

someone threw the suitcase over the fence.1 Standing next to the

suitcase, one detective discerned a "strong odor" of marijuana;

he unzipped the suitcase and saw that it did in fact contain a

large quantity of marijuana. Fermin was arrested and transported

to the police barracks.

While being interviewed at the barracks, Fermin

reiterated that he happened upon the suitcase while running at the

Providence College track, after someone threw it over the fence.

Fermin also volunteered to the detective processing him that he and

his friend saw someone "dump" the suitcase near the Providence

College track; his friend had encouraged him to take the bag,

1
A Providence College security guard testified at trial that
there is no outdoor track on campus.

-3-
believing there might be money in it. He declined to identify his

friend, stating that the friend was "a college white boy and you

know how they are." The detective later presented Fermin with

surveillance photographs taken earlier that day, both before and

after he had retrieved the suitcase, which depicted him walking

down the street alone. Fermin became visibly upset and said that

he did not want to argue.

Police recovered thirty-three pounds of marijuana from

the suitcase, stored in thirty-eight gallon-sized clear plastic

bags;2 thirty-one grams of cocaine; a bottle of powdered caffeine;3

three digital scales; and a box of plastic bags like the ones

filled with marijuana. In addition, the suitcase contained a .357

revolver loaded with six rounds of ammunition inside a rolled-up

pair of sweatpants.

A three-count indictment issued against Fermin, charging

him with possession of marijuana with intent to distribute,

possession of cocaine with intent to distribute, and possession of

a firearm in furtherance of those crimes. Fermin unsuccessfully

moved to suppress all evidence seized by law enforcement personnel

2
Twenty-one fingerprints were found on the bags of marijuana.
Neither of the two prints that could be traced to a specific person
belonged to Fermin.
3
A detective testified at trial that narcotics traffickers
use caffeine to cut and add bulk to cocaine, in order to sell more
of the drug.

-4-
on January 6, 2012, as well as all statements he made to police

that day.

After a three-day trial, Fermin was convicted of the two

drug charges but acquitted of the firearm charge.4 Applying

sentence enhancements for obstruction of justice and possession of

a firearm during the commission of the crimes, the district court

sentenced Fermin to forty-one months in prison. This appeal

followed.

II. Analysis

A. Motion to suppress

1. Evidence at the motion hearing and district court's
ruling

The district court held a hearing on the motion to

suppress, at which Fermin and two detectives, Allen and Demers,

testified. The detectives' testimony at the hearing concerning

their January 6 surveillance of Fermin tracked their eventual trial

testimony. However, Detective Allen also gave details, not placed

before the jury, of a tip received from a reliable confidential

informant two days prior to Fermin's stop. The informant told

police that 40 Liege Street was being used as a "stash house" for

large amounts of marijuana, approximately 1000 or 1500 pounds, and

that the stash was to be relocated soon. Acting on the tip, task

4
Defense counsel moved for a judgment of acquittal, arguing
that the evidence was insufficient to convict on all counts. The
district court denied the motion.

-5-
force members conducted surveillance of the area on January 4 and

5. They observed vehicles pulling up in front of 40 Liege Street

and one or more people entering the house at a time, leaving a

short time later. Such activity, Detective Allen believed, was

consistent with narcotics trafficking.

Fermin's account of the ensuing stop on January 6

contradicted that of the detectives. Fermin testified that he was

jogging in the area when he found the suitcase next to a recycling

bin in someone's backyard. Picking it up and noting its

substantial weight, Fermin became curious as to its contents, but

did not want to open it while on the potential owner's property.

He decided to take the suitcase to the Chad Brown housing project,

where "people mind their business," resolving to throw it out there

if it contained nothing of value.

According to Fermin, he was wheeling the suitcase down

the street when a car sped by and abruptly came to a stop ahead of

him. An officer emerged, pointing a gun at him, and commanded him

to stop. Fermin immediately let go of the suitcase. Another

officer exited a different car, also with her gun drawn; the two

converged on Fermin as a third officer approached him with

handcuffs. In response to their questioning about the suitcase,

-6-
Fermin told police that he had just found it in someone's yard and

that it did not belong to him.5

Detective Demers testified that he parked on the street

next to Fermin and displayed his badge — but not his gun — as he

exited the vehicle, stating, "State Police. State Police task

force. We want to talk to you regarding the suitcase you're

carrying." In response, Fermin put his hands up and dropped the

suitcase, declaring that it was not his and that he had found it

while running at the Providence College track. Immediately

thereafter, Detective Allen arrived on the scene and parked his

car, with the front of his car facing both Detective Demers and

Fermin. Two other officers also arrived and stood behind Fermin.

Detective Allen asked questions of Fermin in what he

described as a "conversational" tone of voice; he denied giving any

commands or drawing his gun. Allen placed Fermin in handcuffs once

marijuana was discovered in the suitcase and transported him to the

police barracks.

Crediting the detectives' version of events over

Fermin's, the district court ruled that the encounter was a

consensual one that did not implicate the Fourth Amendment.

Further, the warrantless search of the suitcase was proper, as

5
Fermin testified that he told police that he had been
running on the Providence College campus, but that when police
asked him whether he was running on the track, he told them that
there was no track there.

-7-
Fermin had disclaimed ownership of it and thus forfeited a claim of

privacy. See United States v. De Los Santos Ferrer, 999 F.2d 7,

9–10 (1st Cir. 1993). The court held in the alternative that, even

if the encounter constituted a seizure for Fourth Amendment

purposes, police had reasonable suspicion, supported by articulable

facts, that criminal activity might have been afoot. The court

therefore denied Fermin's motion to suppress.

2. Discussion

"When reviewing a challenge to the district court's

denial of a motion to suppress, we view the facts in the light most

favorable to the district court's ruling on the motion, and we

review the district court's findings of fact and credibility

determinations for clear error." United States v. Camacho, 661

F.3d 718, 723 (1st Cir. 2011) (internal citations and quotation

marks omitted). However, we review conclusions of law de novo,

giving plenary review to the district court's application of law to

facts, reasonable-suspicion determinations, and ultimate decision

to deny the motion. Id. at 724.

The question whether the encounter at issue was

consensual, or instead a seizure within the meaning of the Fourth

Amendment, is not free from doubt. The district court found that

it was "undisputed that there were . . . at least four, if not five

officers present in some formation around [Fermin] in a very short

period of time after he was confronted," and that police told

-8-
Fermin that they wanted to speak with him about the contents of the

suitcase. It is not clear that a reasonable person, surrounded by

five police officers, would believe that he was free to leave. See

California v. Hodari D., 499 U.S. 621, 627–28 (1991). Indeed,

Fermin did not leave but rather submitted to police authority by

answering questions about the suitcase. See United States v.

Holloway, 499 F.3d 114, 117 (1st Cir. 2007) (citizen's submission

to show of police authority is a prerequisite for a finding of

seizure).

We need not decide the question, however, because

Fermin's stop was supported by reasonable suspicion in any event.

See United States v. Espinoza, 490 F.3d 41, 46 (1st Cir. 2007)

(brief investigatory stops can be grounded on reasonable suspicion,

as opposed to probable cause). Police had "a particularized and

objective basis for suspecting [Fermin] of criminal activity."

Ornelas v. United States, 517 U.S. 690, 696 (1996) (alteration,

citations, and internal quotation marks omitted).

Acting on a tip from a confidential informant that the

house at 40 Liege Street was a repository for a large amount of

marijuana, police observed comings and goings from the house

consistent with drug trafficking. See United States v. Jones, 700

F.3d 615, 621 (1st Cir. 2012) ("Information provided to police by

third parties may create reasonable suspicion if the information

contains sufficient 'indicia of reliability.'" (quoting Alabama v.

-9-
White, 496 U.S. 325, 328 (1990))). This is not a case where the

detectives' suspicion was based on Fermin's mere presence in a

high-crime area known for drug activity. Cf., e.g., Camacho, 661

F.3d at 726–27. The tip and surveillance, combined with Fermin's

deliberate path toward 40 Liege Street, his disappearance between

houses and reemergence with the suitcase shortly thereafter, and

subsequent attempt to keep the suitcase out of sight by hiding it

under a Jeep, together constituted "specific and articulable facts"

justifying the belief that Fermin was engaged in criminal activity.

United States v. Rabbia, 699 F.3d 85, 89–90 (1st Cir. 2012)

(quoting United States v. Brake, 666 F.3d 800, 804 (1st Cir. 2011);

cf. United States v. Velez-Saldana, 252 F.3d 49, 52 (1st Cir. 2001)

(police had reasonable suspicion to stop defendant after seeing him

emerging from area where large shipment of drugs recently had been

seized); United States v. Moore, 235 F.3d 700, 703–04 (1st Cir.

2000) (officers had reasonable suspicion to conduct stop after

defendant ran out of apartment in building where they "had just

observed significant foot traffic suggesting ongoing drug sales,"

and defendant attempted to hide something from officers). The stop

was thus permissible, as was the search of the suitcase following

Fermin's disclaimer of ownership. See De Los Santos Ferrer, 999

F.2d at 9–10. The district court properly denied the motion to

suppress.

-10-
B. Sufficiency of the evidence

At trial, the government proceeded on alternative

theories in support of Fermin's guilt, arguing that he either had

actual knowledge of what was in the suitcase, or else purposely

avoided learning of the contents. See United States v. Appolon,

695 F.3d 44, 64 (1st Cir. 2012) (noting that theories of actual

knowledge and willful blindness "can coexist" (quoting United

States v. Griffin, 524 F.3d 71, 79 (1st Cir. 2008))). Over defense

counsel's objection, the district court instructed the jury that

they could infer that Fermin acted knowingly if it found "that he

deliberately closed his eyes to a fact that otherwise would have

been obvious to him."

Fermin argues on appeal that the willful-blindness

instruction was unwarranted where there were no "facts suggest[ing]

a conscious course of deliberate ignorance." United States v.

Azubike, 564 F.3d 59, 66 (1st Cir. 2009). He further contends that

the evidence at trial was insufficient, under either theory, to

establish that he knew that the suitcase contained drugs.

"We review preserved challenges to the sufficiency of the

evidence de novo." Id. at 64. "In assessing sufficiency, we

examine the evidence, both direct and circumstantial, in the light

most favorable to the prosecution . . . , including all plausible

inferences drawn therefrom." United States v. Cruz-Rodríguez, 541

F.3d 19, 26 (1st Cir. 2008). "If, in this light, any reasonable

-11-
jury could find all the elements of the crime beyond a reasonable

doubt, we must uphold the conviction." United States v. Lizardo,

445 F.3d 73, 81 (1st Cir. 2006).

We consider first whether there was sufficient evidence

that Fermin actually knew of the drugs in the suitcase. It is

worth noting at the outset that key evidence tending to establish

Fermin's mens rea was not before the jury, namely, the tip that 40

Liege Street was a drug "stash house" and the detectives'

subsequent surveillance of the area. Without this evidence, the

case against Fermin is a closer one. However, after a full review

of the transcript, we conclude that there was nonetheless

sufficient evidence to support Fermin's convictions on a theory of

actual knowledge.

There was evidence before the jury of Fermin's purposeful

behavior in retrieving the suitcase from the 40 Liege Street area.

Fermin walked, empty-handed, towards the rear of 40 and 48-50 Liege

Street. Witnesses testified that he emerged with a "bulging"

suitcase three to four minutes later and walked back the way he had

come, looking over his shoulder "as [if] to check if anyone was

walking behind him." Fermin then tried to hide the suitcase next

to and under a Jeep while he talked on his cell phone. Cf. United

States v. Ortiz, 23 F.3d 21, 25 (1st Cir. 1994) (defendant's entry

into a condominium complex empty-handed, emergence with a black

bag, and placing of the bag into car trunk supported a rational

-12-
inference that defendant knew that the bag contained cocaine).

This evidence is probative of Fermin's deliberate conduct and

distinguishes the case from others involving defendants who

happened to be in the wrong place at the wrong time. See, e.g.,

United States v. Valerio, 48 F.3d 58, 64–65 (1st Cir. 1995)

(evidence insufficient to support conviction of knowing possession

of cocaine with intent to distribute where drugs were found in

lining of chair in apartment of which defendant was short-term

occupant).

Further, the jury could infer Fermin's knowledge of his

cargo from his nervous behavior and attempts to conceal the

suitcase, as well as from the odor of marijuana emanating from the

suitcase. See United States v. De Jesús-Viera, 655 F.3d 52, 60

(1st Cir. 2011) ("Testimony regarding [the defendant's] nervous

behavior . . . was also supporting evidence of guilt."); Azubike,

564 F.3d at 65 ("attempts at secrecy" demonstrative of defendant's

knowledge that briefcase with which he was entrusted contained

heroin); United States v. de Leon Davis, 914 F.2d 340, 342 (1st

Cir. 1990) (strong odor of glue emanating from suitcase, used to

avoid detection of drugs, supported inference of knowing

participation in drug trafficking).

The jury also could have found that Fermin gave more than

one demonstrably false account of how he found the suitcase,

explaining first that someone threw it over the fence while he was

-13-
running at the Providence College track, and later that he and his

friend had found it together and that the friend had encouraged him

to take it. Unfortunately for Fermin, a lieutenant at the school's

Office of Safety and Security testified at trial that there is no

outdoor track on campus; surveillance photographs also depicted

Fermin alone — on a residential street, not on the college campus

— both immediately before and after retrieving the suitcase. Thus,

Fermin's "knowingly false statement[s were] probative of [his]

consciousness of guilt." United States v. Littlefield, 840 F.2d

143, 149 (1st Cir. 1988).

Finally, there was testimony at trial that the wholesale

value of the drugs in the "heavily packed" suitcase was up to

$51,200, with the retail value being double that amount. The

quantity of drugs possessed provides a basis from which to infer

knowledge. See De Jesús-Viera, 655 F.3d at 60; Azubike, 564 F.3d

at 65; United States v. Ayala-Tapia, 520 F.3d 66, 68 (1st Cir.

2008). Thus, viewing the evidence in the light most favorable to

the government, a reasonable jury could find that Fermin had actual

knowledge of the contents of the suitcase.6

6
Although Fermin takes issue only with the government's
evidence as to the knowledge element, we note that there was
sufficient evidence of his intent to distribute, too. Such intent
could be inferred from the quantity of drugs possessed, as well as
from the possession of drug paraphernalia such as digital scales
and plastic baggies. United States v. Cortés-Cabán, 691 F.3d 1,
35–36 & nn.37, 41 (1st Cir. 2012).

-14-
 Given this conclusion, we need not reach the question

"whether the record evidence reveals flags of suspicion that,

uninvestigated, suggest willful blindness," such that the willful-

blindness instruction was warranted. United States v. Epstein, 426

F.3d 431, 440 (1st Cir. 2005) (internal quotation marks omitted).

Although the warning signs of criminal activity were perhaps less

conspicuous than in other cases where such an instruction properly

was given, e.g., Lizardo, 445 F.3d at 85, any error in the decision

to give the instruction was harmless in light of the ample evidence

of Fermin's actual knowledge. United States v. García-Pastrana,

584 F.3d 351, 379 n.36 (1st Cir. 2009) (error in giving willful-

blindness instruction harmless where evidence is sufficient to

support defendant's direct knowledge of criminal activity).

Moreover, because the court's "instruction, taken as a

whole, [could not] be misunderstood as mandating an inference of

knowledge," Azubike, F.3d at 66, there was no danger that the jury

convicted based on an impermissibly low standard, see United States

v. Brandon, 17 F.3d 409, 453 (1st Cir. 1994). The district court

cautioned the jury,

It is entirely up to you to determine whether
[Fermin] deliberately closed his eyes to [a]
fact and, if so, what inference if any should
be drawn from that fact. However, it is
important to bear in mind that mere negligence
or mistake or ignorance in failing to learn a
fact is not sufficient. There must be a
deliberate effort to remain ignorant of the
fact. If after considering all of the
evidence you have a reasonable doubt that

-15-
 [Fermin] acted with the requisite culpable
state of mind, then you must find [Fermin] not
guilty.

Cf. Littlefield, 840 F.2d at 148 (court's instruction did not

mandate inference of knowledge where it explained to jury that

defendant's mere negligence would be insufficient to establish

guilt). "Thus, there was little risk that the jury was confused

into convicting a defendant who merely should have known about the

criminal venture." Brandon, 17 F.3d at 454.

C. Jury instructions

Fermin next argues that the district court's jury

instruction regarding the consideration of expert testimony was

erroneous. In particular, he takes issue with the court's

admonition that, due to expert witnesses' "specialized knowledge,"

their opinions should be "carefully consider[ed]" and "should not

be disregarded lightly." Fermin asserts that this instruction

effectively directed the jury to defer to Detective Allen, who

opined that the quantities of marijuana and cocaine found in the

suitcase were consistent with distributive intent, rather than

personal use.7

7
To the extent that Detective Allen testified based on his
experience handling hundreds of narcotics investigations and drug
seizures over twenty-three years, his testimony appears to have
constituted "specialized knowledge" within the meaning of Federal
Rule of Evidence 702, which governs expert witnesses. Cf. United
States v. García-Morales, 382 F.3d 12, 19 (1st Cir. 2004) (where
agent had "participated in between 20 to 40 narcotic investigations
and 40 to 60 drug seizures," his "professional background provided
him with sufficient experience to explain the structure and

-16-
 Because Fermin did not object to this instruction, our

review is for plain error. See Fed. R. Crim. P. 30(d); United

States v. Medina-Martinez, 396 F.3d 1, 8 (1st Cir. 2005). "When

applying the plain error standard in the context of jury

instructions, we look at the instructions as a whole to ascertain

the extent to which they adequately explain the law without

confusing or misleading the jury." United States v. Brown, 669

F.3d 10, 29 (1st Cir. 2012) (internal quotation marks omitted).

It is the province of the jury to determine the proper

weight to assign to expert testimony. United States v. Shelton,

490 F.3d 74, 79 (1st Cir. 2007). Testimony is not entitled to

deference simply because it derives from an expert. See United

States v. Pires, 642 F.3d 1, 12 (1st Cir. 2011). Indeed, jurors

often are reminded to "consider the factors that generally bear

upon the credibility of a witness" when weighing expert testimony.

Pattern Criminal Jury Instructions for the District Courts of the

First Circuit § 2.07.8

Although the district court errantly advised the jury

that expert testimony "should not be disregarded lightly," the

instruction in its entirety apprised the jury of its proper role

vis-à-vis expert witnesses. The court told the jury that it was

operation of a typical drug conspiracy.").
8
We note, however, that the pattern instructions are
"precatory, not mandatory." United States v. Gomez, 255 F.3d 31,
39 n.7 (1st Cir. 2001).

-17-
not required to accept an opinion just because a witness has

specialized knowledge, that it should measure the credibility of

expert witnesses by the same standard applicable to other

witnesses, and that expert opinions "are not necessarily

determinative or conclusive."9 Separately, the court also

cautioned against giving special weight to law-enforcement

testimony. These multiple warnings were sufficient to offset any

potential confusion, and the instruction as a whole was not plainly

erroneous. Cf. Brown, 669 F.3d at 30 (although certain language in

instruction was "ambiguous in the abstract, the rest of the jury

9
The district court instructed the jury as follows:

During the trial, you heard testimony from several
witnesses who claim to have specialized knowledge in a
technical field. These witnesses are sometimes referred
to as expert witnesses. And because of their specialized
knowledge, they are permitted to express opinions which
may be helpful to you in determining the facts.
Since they do have specialized knowledge, the
opinions of expert witnesses, whether expressed
personally or in documents which have been admitted into
evidence, should not be disregarded lightly. On the
other hand, you are not required to accept such opinions
just because the witness has specialized knowledge.
In determining the weight to give to the testimony
of a so-called expert witness, you should apply the same
tests of credibility that apply to the testimony of any
other witness. That is, the opportunity to observe the
facts about which he testified, his apparent candor or
lack of candor, and you may take into account the
witness's qualifications, especially in comparison to any
qualifications of any expert witness who expressed
contrary opinions, and the accuracy of the facts upon
which the witness's opinions are based.
So in short, you should carefully consider the
opinions of expert witnesses, but they are not
necessarily determinative or conclusive.

-18-
instruction lent content to it," such that jury was not led

astray); United States v. Nishnianidze, 342 F.3d 6, 16 (1st Cir.

2003) (finding no plain error in jury instruction where district

court initially misstated element of crime but later clarified

nature of government's burden).

D. Sentencing

Fermin argues that resentencing is required because the

district court imposed two unsupported sentence enhancements and

also improperly penalized him for exercising his right against

self-incrimination. We consider each objection in turn, reviewing

the court's legal conclusions de novo and factual conclusions for

clear error. United States v. Gonzalez, 609 F.3d 13, 20 (1st Cir.

2010).

1. Obstruction-of-justice enhancement

A sentencing court is authorized to enhance a defendant's

offense level by two levels if the defendant "willfully obstructed

or impeded, or attempted to obstruct or impede, the administration

of justice." U.S. Sentencing Guidelines Manual § 3C1.1. Such an

enhancement may be premised on a finding that the defendant

committed perjury during the course of the investigation,

prosecution, or sentencing. Id. cmt. n.1; United States v.

Maguire, 752 F.3d 1, 5 (1st Cir. 2014). The court must make an

independent finding, by a preponderance of the evidence, that the

elements of perjury have been satisfied before imposing the

-19-
enhancement. Gonzalez, 609 F.3d at 20. "Perjury consists of false

testimony under oath concerning a matter material to the

proceeding, as long as the testimony is given 'with the willful

intent to provide false testimony, rather than as a result of

confusion, mistake, or faulty memory.'" United States v.

Shinderman, 515 F.3d 5, 19 (1st Cir. 2008) (quoting United States

v. Dunnigan, 507 U.S. 87, 94 (1993)).

Here, the district court imposed a two-level enhancement

for obstruction of justice after concluding that Fermin had

perjured himself during the suppression hearing. The court found

that Fermin's testimony was "a tale spun to attempt to get [the

court] to suppress the evidence," and that it was "clearly false,"

both "in its specifics and . . . in a general overall sense." In

particular, the court found untruthful Fermin's account of

discovering the suitcase, his denial that he ever told police that

he found it while running on the track at Providence College, and

his assertion that police stopped him with weapons drawn.

The district court's finding that Fermin willfully lied

in an attempt to have evidence against him suppressed is a factual

one that we review for clear error. Gonzalez, 609 F.3d at 20. We

cannot say that the finding was clearly erroneous. Fermin's

testimony about the circumstances of finding the suitcase and

subsequent stop by police directly conflicted with that of the

other two witnesses, who the court determined to be more credible.

-20-
Cf. United States v. Meada, 408 F.3d 14, 25 (1st Cir. 2005)

(finding of perjury not clearly erroneous where defendant's

testimony "conflicted with several other witnesses"). "This was no

garden-variety testimonial conflict about a peripheral matter but,

rather, a head-on clash about a central issue" at the heart of the

motion to suppress. Shinderman, 515 F.3d at 19. As the district

court noted, Fermin's disavowal of having told police that he was

running at the track also was belied by police reports that

recorded such statement after the fact.

Fermin contends that the district court failed to make

the requisite finding that his false testimony concerned a matter

material to the suppression hearing. But insofar as his testimony

was relevant to whether police had reasonable suspicion to conduct

the stop and whether that stop constituted a seizure, it was

"obviously material." United States v. Campbell, 61 F.3d 976, 984

(1st Cir. 1995) (affirming application of obstruction-of-justice

enhancement where district court "applied the correct legal test

for perjury" but did not make explicit materiality finding, noting

that "court of appeals can make materiality determination absent

express district court finding"). The enhancement was proper and

not clearly erroneous.

2. Gun enhancement

Fermin also disputes the two-level enhancement imposed

under U.S.S.G. § 2D1.1(b)(1). That guideline applies if a

-21-
dangerous weapon was possessed during the course of a drug-

trafficking offense, provided that the presence of the weapon was

known to, or reasonably foreseeable to, the defendant. United

States v. Quiñones-Medina, 553 F.3d 19, 23 (1st Cir. 2009).10 The

commentary to the guideline notes that "[t]he enhancement should be

applied if the weapon was present, unless it is clearly improbable

that the weapon was connected with the offense." U.S.S.G. § 2D1.1

cmt. n.11(A); see also United States v. Thongsophaporn, 503 F.3d

51, 58 (1st Cir. 2007). Fermin argues that there was insufficient

evidence that he knew or could have reasonably foreseen the

presence of the gun in the suitcase, particularly where the jury

acquitted him of the firearm charge.

Although we are mindful that the jury acquitted Fermin of

the firearm charge, it remains the law in this Circuit that

acquitted conduct can form the basis of a sentence enhancement.

United States v. Gobbi, 471 F.3d 302, 314 (1st Cir. 2006). While

the jury must, of course, find facts beyond a reasonable doubt, a

preponderance-of-the-evidence standard applies to the sentencing

court's factual findings. Id. Further, there is no necessary

inconsistency between acquittal on charges of "knowing" possession

10
The "reasonably foreseeable" standard applies in cases of
joint criminal ventures, irrespective of whether the venture has
been charged as a conspiracy. U.S. Sentencing Guidelines Manual
§ 1B1.3(a)(1)(B); United States v. Thongsophaporn, 503 F.3d 51, 58
& n.8 (1st Cir. 2007).

-22-
of a firearm and the court's finding that the presence of the gun

was "reasonably foreseeable" to Fermin.

Here, the district court determined that Fermin either

was moving his own suitcase or that he was moving it at the behest

of another person. If the former was true, the court found that

"it was absolutely clear that it was more likely than not he knew

that the firearm was present in the suitcase." If, on the other

hand, the latter was true, the court found that Fermin had been

entrusted with $50,000 worth of drugs; someone in his position,

relied upon to transport drugs of such value, could be expected to

be familiar with the trade and foresee the coincidence of guns and

drugs. The court thus concluded that, regardless of which scenario

prevailed, it was more likely than not that Fermin "knew of and/or

could reasonably foresee the presence of [the] firearm." This

finding was warranted and not clearly erroneous, in light of

evidence of Fermin's knowledge of the drugs in the suitcase, and

case law recognizing that such knowledge makes the presence of guns

reasonably foreseeable.11 See, e.g., United States v. Bianco, 922

F.2d 910, 912 (1st Cir. 1991) (affirming application of firearm

enhancement and noting that "we often observe that firearms are

11
We note also that, as discussed above, the district court
had before it evidence of an ongoing drug operation that was not
presented to the jury: the confidential informant's tip,
corroborated by police, that the house at 40 Liege Street was being
used as a "stash house" for large quantities of marijuana, which
was to be relocated shortly.

-23-
common tools of the drug trade." (citing United States v. Jackson,

918 F.2d 236, 240 (1st Cir. 1990), United States v. Walters, 904

F.2d 765, 769 (1st Cir. 1990))).

3. Alleged penalty for Fermin's exercise of right
against self-incrimination

Finally, Fermin argues that he was penalized during

sentencing for having exercised his constitutional right against

self-incrimination. Specifically, Fermin contends that the

district court improperly focused on his refusal to admit knowledge

of the contents of the suitcase, drawing an adverse inference from

the refusal and meting out a harsher sentence as a result. Because

Fermin did not raise this objection below, our review is for plain

error. United States v. Paladin, 748 F.3d 438, 452 (1st Cir.

2014).

In short, the record does not bear out Fermin's

assertion. Toward the end of the sentencing hearing, the district

court discussed a letter that Fermin had sent to the court

following trial, in which he voiced regret for taking the suitcase

but still maintained that he had not known of its contents. The

court did not focus on Fermin's silence, but rather on the version

of events he articulated during the suppression hearing and again

in the letter, expressing skepticism at his insistence that he did

not know what was in the suitcase. However, the court did not

translate this skepticism into an additional sentence enhancement;

in fact, the forty-one-month sentence Fermin ultimately received

-24-
was at the lowest end of the guideline range for his offense

level.12 There is no indication that the court imposed a more

severe penalty as a result of Fermin's failure to admit that he

knew what was in the suitcase.

III. Conclusion

For the foregoing reasons, Fermin's convictions and

sentence are AFFIRMED.

12
It is evident from the transcript of the sentencing hearing
that the district court was mindful of the factors to be considered
under 18 U.S.C. § 3553(a).

-25-