United States Court of Appeals
For the First Circuit
No. 13-2379
UNITED STATES OF AMERICA,
Appellee,
v.
JUSTO L. BURGOS-FIGUEROA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Thompson, Selya and Kayatta,
Circuit Judges.
Anita Hill Adames on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, on brief for appellee.
February 13, 2015
SELYA, Circuit Judge. This is a single-issue sentencing
appeal. In it, defendant-appellant Justo L. Burgos-Figueroa
assigns error to the district court's imposition of a two-level
sentencing enhancement reflecting the possession of a dangerous
weapon during a drug-trafficking conspiracy. See USSG
§2D1.1(b)(1).
It is common ground that a sentencing enhancement must be
supported by a preponderance of the evidence. See United States v.
McDonald, 121 F.3d 7, 9 (1st Cir. 1997). The facts undergirding an
enhancement need not be established by direct evidence but, rather,
may be inferred from circumstantial evidence. See United States v.
Cruz, 120 F.3d 1, 4 (1st Cir. 1997) (en banc). This is such a case
and, after careful consideration, we uphold the disputed
enhancement.
A synopsis affords the necessary perspective. On October
26, 2012, a federal grand jury sitting in the District of Puerto
Rico returned a four-count indictment against the appellant. The
parties later entered into a written plea agreement (the
Agreement). Pursuant to the Agreement, the appellant pleaded
guilty to count 1 of the indictment (which charged him with
conspiring to distribute substantial quantities of cocaine, heroin,
and marijuana, see 21 U.S.C. §§ 841(a)(1), 846), and the government
agreed to dismiss the remaining counts. In the Agreement, the
parties stipulated to a series of guidelines calculations. These
-2-
stipulations envisioned only two adjustments to the appellant's
offense level: a two-level enhancement for the appellant's role as
a leader or manager of the conspiracy, see USSG §3B1.1(c), and a
three-level reduction for acceptance of responsibility, see id.
§3E1.1(b).
Following customary practice, the probation office
prepared a presentence investigation report (PSI Report). The
Report disclosed that the appellant, along with at least thirty-two
confederates, had participated in a sprawling conspiracy to
distribute an array of drugs from various drug points in the
Pastillo Ward in Juana Diaz, Puerto Rico. The conspiracy was
organized along hierarchical lines, allocating varying degrees of
authority among leaders, drug point owners, enforcers, sellers,
runners, and facilitators. As a drug point owner, the appellant
supervised other members of the conspiracy and supplied controlled
substances to coconspirators for distribution and sale. Of
particular pertinence for present purposes, the PSI Report made
pellucid that the conspiracy involved the use of firearms as a
means of protecting the enterprise and its wares against rival
organizations and gangs. The appellant did not object either to
this factual recital or to any other factual recital explicated in
the PSI Report.
Based on the facts developed in the PSI Report, the
probation office recommended, inter alia, a two-level enhancement
-3-
for possessing firearms during the conspiracy. See id.
§2D1.1(b)(1). At the disposition hearing, the appellant opposed
this recommendation, and the government took no position concerning
it. The appellant argued that the weapons enhancement did not
apply because the record contained no direct evidence that either
he or any person working under his immediate supervision possessed
any firearms. The district court rejected this argument. The
court found that, as the owner of a drug point and a leader of the
conspiracy, the appellant reasonably could have foreseen that his
coconspirators and subordinates would possess guns. The court
proceeded to impose the enhancement, which had the effect of
elevating the appellant's guideline sentencing range to 135-168
months. After considering the appellant's personal characteristics
and the nature and circumstances of the offense of conviction, the
court sentenced the appellant to serve a 168-month term of
immurement. This timely appeal ensued.
In this venue, the appellant strives to convince us that
it was error for the district court to impose the weapons
enhancement simply because others carried firearms during the
conspiracy. We are not persuaded.
The sentencing guidelines authorize a two-level increase
in a defendant's offense level "[i]f a dangerous weapon (including
a firearm) was possessed" during the course of a drug-trafficking
conspiracy. Id. For this enhancement to attach, a defendant need
-4-
not be caught red-handed: the enhancement applies not only where a
defendant himself possessed a firearm but also where it was
reasonably foreseeable to the defendant that firearms would be
possessed by others during the conspiracy. See id.
§1B1.3(a)(1)(B); United States v. Bianco, 922 F.2d 910, 912 (1st
Cir. 1991).
In this instance, the sentencing court found that the
appellant reasonably could have foreseen that his coconspirators
and subordinates would possess firearms to protect the drug-
trafficking enterprise. We review that factual finding for clear
error, see United States v. Quiñones-Medina, 553 F.3d 19, 23 (1st
Cir. 2009), mindful that when the record plausibly supports
competing inferences, a sentencing court's choice among them cannot
be clearly erroneous, see United States v. Ruiz, 905 F.2d 499, 508
(1st Cir. 1990). We discern no clear error here.
A sentencing court may consider facts set forth in
unchallenged portions of the PSI Report as reliable evidence. See
United States v. Olivero, 552 F.3d 34, 39 (1st Cir. 2009); Cruz,
120 F.3d at 2. Here, that constellation of facts made plain that
members of the conspiracy regularly carried firearms for the
purpose of protecting drug points (including the appellant's drug
point). What is more, turf wars raged; and members of the
conspiracy participated from time to time in shoot-outs with rival
gangs.
-5-
Given this scenario, the district court could plausibly
infer — as it did — that the appellant, who was a drug point owner
and a leader of the conspiracy whose duties included the
supervision of others, knew of these practices and incidents and
could foresee their continuation. See United States v. Vázquez-
Rivera, 470 F.3d 443, 447 (1st Cir. 2006) (finding possession of
firearms reasonably foreseeable where defendant was manager of drug
point and intimately involved in its operations). Indeed, with
firefights erupting as his organization waged war with rival gangs,
it beggars credulity to suggest that the appellant was blissfully
unaware that his coconspirators and subordinates carried firearms.
This inference is bolstered by the fact that the
conspiracy dealt in large amounts of heroin, cocaine, and
marijuana. When large quantities of drugs are involved, firearms
are common tools of the trade. See Quiñones-Medina, 553 F.3d at
24; Bianco, 922 F.2d at 912. This circumstance lends credence to
the inference that the appellant reasonably could have foreseen the
use of firearms in the operation of the conspiracy. See United
States v. Sostre, 967 F.2d 728, 731-32 (1st Cir. 1992); Bianco, 922
F.2d at 912.
In an effort to blunt the force of this reasoning, the
appellant complains that the district court mentioned three
coconspirators who possessed firearms without making any finding
that the appellant had any specific connection to those
-6-
individuals. This complaint is unfounded. Reading the court's
statements in context, we think it clear that the court was simply
making an observation about the appellant's role in the conspiracy
as compared to the roles of other coconspirators. And in all
events, the court was not required to find that the appellant knew
that any particular coconspirator possessed a firearm at any given
time. See, e.g., Vázquez-Rivera, 470 F.3d at 447.
The appellant also suggests that the district court's
determination is somehow undermined by the fact that he was not
charged in the weapons count, see 18 U.S.C. § 924(c)(1)(A), (o),
while other conspirators were so charged. But this is a non-issue:
whether or not the appellant himself was charged with a firearms
violation is beside the point. What counts is that the court below
supportably determined that the use of weapons during the
conspiracy was reasonably foreseeable to the appellant. See United
States v. Watts, 519 U.S. 148, 154 (1997) (per curiam) (recognizing
that uncharged conduct can serve as the basis for a sentencing
enhancement); United States v. Smith, 267 F.3d 1154, 1165 (D.C.
Cir. 2001) (same).
We need go no further. Although the record contains no
evidence that the appellant himself ever carried a firearm, that
kind of proof is not essential for a weapons enhancement under USSG
§2D1.1(b)(1). The enhancement may be based on a finding that the
appellant reasonably could have foreseen firearms possession by
-7-
others during the conspiracy. Such a finding may be premised on
circumstantial evidence, see United States v. Paneto, 661 F.3d 709,
716 (1st Cir. 2011), and the circumstantial evidence here is more
than sufficient to warrant application of the enhancement.
Affirmed.
-8-