Not For Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 16-1235
UNITED STATES OF AMERICA,
Appellee,
v.
SANTIAGO MARINO REYES-LARA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Dyk,* Circuit Judges.
John F. Cicilline, on brief for appellant.
Seth R. Aframe, Assistant United States Attorney, and Emily
Gray Rice, United States Attorney, on brief for appellee.
December 20, 2016
* Of the Federal Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Defendant Santiago Marino
Reyes-Lara ("Reyes") pleaded guilty to possession with the intent
to distribute controlled substances. He appeals his sentence of
eighty-four months' imprisonment, arguing that the district court
improperly calculated his recommended sentence under the United
States Sentencing Guidelines (the "Guidelines"). We affirm.
I. BACKGROUND
A. Factual Background
On April 22, 2014, federal agents obtained an arrest
warrant for Reyes and a search warrant for a Nissan Xterra (the
"Xterra") that Reyes frequently drove. That evening, New
Hampshire police officers stopped Reyes, who was driving the
Xterra. Officers found 22.3 grams of crack, 6.5 grams of cocaine,
and 6.5 grams of heroin in the Xterra. They also found $795 in
cash on Héctor Palancos, who was a passenger in the Xterra at the
time of the stop.
On April 23, 2014, agents executed a search warrant for
95 Marble Street, Lawrence, Massachusetts ("95 Marble"), a house
that Reyes's girlfriend leased. In a closet in one bedroom of 95
Marble, which "appeared to be a 'religious' type room," agents
found a safe containing 34.8 grams of crack, 208.9 grams of
cocaine, and 32.9 grams of heroin and a loaded firearm. The master
bedroom "appeared from clothing and other items to be occupied by
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a male and a female," and the third bedroom "appeared to be
occupied by young children."
There were two adults and two children at 95 Marble when
agents executed the warrant. One of the adults told agents that
she was babysitting the two children, but she did not know the
children's mother. The other adult subsequently told defense
counsel that he had been residing at 95 Marble.
Agents found various items at 95 Marble that indicated
Reyes was an occupant:
1. The same three types of drugs found in the Xterra.
2. A Notice of Residency and probation reporting forms in
the name of Jean Carlos Sotomayor-Venerio, an alias
frequently used by Reyes.
3. A National Grid electricity bill in the name of Leonardo
Colón-Montez. Reyes's landlord 1 identified Reyes as
"Leonardo Colón-Montez" from a photograph and provided
a phone number for Reyes that was also "associated with
the National Grid account for 95 Marble."
4. A vehicle registration in the name of Herbert Ralph.
Reyes stipulated that officers would testify that "Mr.
Ralph stated that he registered the [vehicle] for
[Reyes] in exchange for narcotics."
In addition to the items found at 95 Marble, officers
had observed Reyes in his Xterra in "the area of" 95 Marble on
February 12, 2014. On April 10, 2014, officers again observed
1 Reyes claimed that he lived at 8 Rollins Street, Lawrence,
Massachusetts. Elias Azzi owned 8 Rollins Street, which he leased
to Reyes's sister.
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Reyes near 95 Marble. Later that day, while still driving the
Xterra, Reyes was videotaped selling controlled substances to a
confidential informant. Similarly, a tracking device on the
Xterra showed that it stopped at 95 Marble on April 22, 2014; Reyes
was arrested later that day while driving the vehicle. Reyes's
"on and off" girlfriend also "stated that she 'sometimes' stayed
with [Reyes] at 95 Marble." Reyes's girlfriend signed a lease for
95 Marble, and she is the mother of two children with Reyes.
Further, the government identified two Facebook pictures, one from
July 29, 2013 and one from April 19, 2014, showing Reyes at 95
Marble.
After his arrest, Reyes consistently identified himself
as Jean Carlos Sotomayor-Venerio, including to the probation
officer who drafted his presentence report and the district court.
As of the time of his objection to the presentence report, Reyes
still "maintained that his true identity [was] Jean Carlos
Sotomayor-Venerio," although he abandoned that on appeal.
B. Procedural History
On May 22, 2015, Reyes pleaded guilty to unlawful
possession with the intent to distribute heroin and crack, in
violation of 21 U.S.C. § 841(a)(1). His presentence report
included the drugs seized at 95 Marble in calculating Reyes's base
offense level as 24. It also included three two-level enhancements
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for the firearm found at 95 Marble, for Reyes's managerial role,
and for obstruction of justice for providing a false name to the
probation officer, and it denied a three-level credit for
acceptance of responsibility because Reyes had obstructed justice.
Reyes objected to the inclusion of the drugs seized at 95 Marble,
the three enhancements, and the denial of credit for acceptance of
responsibility.
The district court agreed that Reyes was not subject to
an enhancement for having a managerial role, but it denied Reyes's
other objections. First, it determined that it was "satisfied
beyond a reasonable doubt" that Reyes possessed the drugs and
firearm at 95 Marble. It found that (1) Reyes "was engaged
actively in the drug-dealing business," (2) 95 Marble was his
girlfriend's house, (3) the Xterra stopped at 95 Marble on the day
that Reyes was arrested while driving the Xterra, (4) he was paying
the electric bill for 95 Marble using a false name, and (5) the
car title and probation forms showed that Reyes "was staying at
that apartment and was treating it as his apartment."
The district court also ruled that it was "clear that
[Reyes was] misrepresenting his identity and continue[d] to do
so," but it stated that a five-level increase "may be excessive,"
and that it would consider that "when we get to the variance
question." The district court then calculated "a total offense
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level 28, criminal history category III," resulting in a Guidelines
recommendation of 97 to 121 months. The district court ultimately
imposed a sentence of 84 months.
Reyes timely appealed.
II. ANALYSIS
Reyes argues that the evidence does not support the
district court's finding that he had constructive possession over
the drugs and pistol found at 95 Marble and that his use of a false
name during presentencing proceedings was not material. "We
review the district court's . . . factual findings for clear
error." United States v. Tavares, 705 F.3d 4, 24 (1st Cir. 2013)
(quoting United States v. Cortés–Cabán, 691 F.3d 1, 26 (1st Cir.
2012)).
A. The District Court Did Not Commit Clear Error by Finding that
Reyes Had Constructive Possession of the Drugs and Gun
Before turning to Reyes's factual arguments, we briefly
address the standard of proof the government must meet for a
sentence enhancement. Citing Apprendi v. New Jersey, 530 U.S. 466
(2000), Reyes argues that "drug quantity . . . needs to be
established by proof beyond a reasonable doubt."2 Reyes is wrong.
"[O]nce convicted, a defendant has no right under the Due Process
2 At the sentencing hearing, the district court stated that it
was "satisfied beyond a reasonable doubt" that Reyes possessed the
drugs at 95 Marble.
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Clause to have his sentencing determination be confined to facts
proved beyond a reasonable doubt." United States v. Lombard, 72
F.3d 170, 175 (1st Cir. 1995). "A sentencing court's operative
factfinding is generally subject only to a 'preponderance of the
evidence' standard." Id. at 176. Apprendi applies only to facts
"that increase[] the penalty for a crime beyond the prescribed
statutory maximum." 530 U.S. at 490. In fact, it made clear that
judges may "exercise discretion -- taking into consideration
various factors relating both to offense and offender -- in
imposing a judgment within the range prescribed by statute." Id.
at 481 (emphasis removed). Here, the district court found facts
related to its Guidelines application -- an exercise in discretion
-- and its sentence was well below the twenty-year maximum sentence
of 21 U.S.C. § 841(b)(1)(C). Thus, the district court only needed
to find by a preponderance of the evidence that Reyes possessed
the drugs for Guidelines purposes. See United States v. Ramírez-
Negrón, 751 F.3d 42, 49 (1st Cir. 2014).
We now turn to the district court's findings. "The
location of drugs or firearms in a defendant's home or car is a
common basis for attributing possession to the defendant . . .
even if the residence or room is shared by others." United States
v. Zavala Maldonado, 23 F.3d 4, 7 (1st Cir. 1994). Constructive
possession is not "automatic" in these cases, but it can permit a
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finding of possession if the contraband is "in a domain specially
accessible to the defendant" and where the defendant's knowledge
can be inferred. Id. Prior drug possession in similar circumstances
can be evidence of possession. See United States v. Rosado, 273
F. App'x 1, 3 (1st Cir. 2008) (unpublished) (listing that the
defendant "was previously involved in drug dealing" as a factor in
finding constructive possession of contraband).
Here, the district court determined that Reyes's
probation form and car title, both found at 95 Marble, were "the
kind of documents you would find" only if Reyes "control[led] the
place." The fact that Reyes was paying the electricity bill and
his girlfriend leased 95 Marble indicated that it was Reyes, and
not some other person, who stored drugs there. In addition, the
evidence linked Reyes to drugs on two separate occasions after he
had stopped at 95 Marble: first when he sold drugs to a
confidential informant and again when he was arrested in the
Xterra. Finally, officers found the same three types of drugs at
95 Marble that they found in the Xterra when they arrested Reyes.
Although these are common drugs, the fact that all three were
present in both the Xterra and at 95 Marble, and that Reyes stopped
at 95 Marble the same day he was arrested, is evidence that Reyes
possessed the drugs at both places. The pistol was found in the
same closet as the drugs, and there is no indication that it
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belonged to any other person. Thus, the district court did not
clearly err by finding by a preponderance of the evidence that
Reyes constructively possessed the drugs and pistol seized at 95
Marble.
B. The District Court Did Not Commit Plain Error by Finding that
Reyes Obstructed Justice by Using a False Name
Reyes argues that giving the name Jean Carlos Sotomayor-
Venerio to the probation officer was not material because his prior
convictions were under that name -- and so it could not have
affected his sentencing -- and he had been using Jean Carlos
Sotomayor-Venerio for years and so was not giving a false name.
In fact, he asserts that, if he had given the name Reyes, the
"probation [officer] would not have been able to add two points to
his criminal history" because the probation officer would not have
known that Reyes was on probation. Reyes did not make these
arguments in the district court, and so we review them only for
plain error. United States v. Correa-Osorio, 784 F.3d 11, 17 (1st
Cir. 2015). We will therefore reverse only if the district court
made "(1) an error, (2) that is clear or obvious, (3) which affects
his substantial rights (i.e., the error made him worse off), and
which (4) seriously impugns the fairness, integrity, or public
reputation of the proceeding." Id. at 18.
Reyes does not dispute that he gave a false name to the
probation officer and the district court. The Sentencing
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Guidelines include "providing materially false information to a
judge . . . [or] to a probation officer in respect to a presentence
or other investigation for the court" as examples of obstruction.
U.S.S.G. § 3C1.1 cmt. n.4(F) & (H).3 And Reyes has not cited a
single case in which a defendant provided a false name to a
probation officer or a district court and was not subject to an
obstruction of justice enhancement under U.S.S.G. § 3C1.1. The
district court found that although the probation officer learned
that Reyes was using a false name "relatively quickly," Reyes "did
obstruct justice." Absent contrary precedent, that finding was
not a clear or obvious error.
III. CONCLUSION
For the foregoing reasons, we affirm Reyes's sentence.
Affirmed.
3 Application Note 5, on which Reyes relies, applies to statements
made "at arrest" or "to law enforcement officers," U.S.S.G. § 3C1.1
cmt. n.5(A) & (B), and so it does not apply here.
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