United States Court of Appeals
For the First Circuit
No. 20-1214
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ ESPINOZA-ROQUE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Howard, Chief Judge,
Kayatta, Circuit Judge,
and Casper,* District Judge.
Jessica E. Earl, Assistant Federal Public Defender, with Eric
Alexander Vos, Federal Public Defender, Franco L. Pérez-Redondo,
Assistant Federal Public Defender, and Kevin E. Lerman, Research
& Writing Specialist, on brief, for appellant.
Joshua K. Handell, Attorney, Criminal Division, with W.
Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte,
Assistant United States Attorney, and Julia M. Meconiates,
Assistant United States Attorney, on brief, for appellee.
* Of the District of Massachusetts, sitting by designation.
February 15, 2022
KAYATTA, Circuit Judge. José Espinoza-Roque challenges
the 46-month sentence he received after pleading guilty to various
firearm offenses. The length of the challenged sentence was shaped
by the district court's finding that Espinoza was an unlawful drug
user at the time of his offenses. Because we find that the district
court erred in reaching that conclusion, we vacate the resulting
sentence. Our reasoning follows.
I.
In January 2019, Espinoza and a co-defendant were
indicted for two illegal firearms sales alleged to have occurred
in May and June of 2018. As relevant here, Espinoza was charged
with dealing firearms without a license and illegally possessing
a machine gun in violation of 18 U.S.C. §§ 922(a)(1)(A) and 922(o),
respectively. Espinoza pleaded guilty.
Because each of Espinoza's offenses involved at least
one qualifying gun, the United States Sentencing Guidelines called
for a higher base offense level (BOL) if Espinoza was also "a
prohibited person at the time" of the offenses. U.S.S.G.
§ 2K2.1(a)(4)(B) (emphasis added). The Guidelines define
"prohibited person" by reference to 18 U.S.C. § 922(g). U.S.S.G.
§ 2K2.1 app. n.3. In turn, 18 U.S.C. § 922(g) applies to, inter
alia, "any person . . . who is an unlawful user of or addicted to
any controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802))." To determine whether
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a person "is an unlawful user," we apply a three-part test: The
offender must have used a controlled substance (1) regularly
(2) "over a long period of time" (3) "proximate to or
contemporaneous with the possession of the firearm." United States
v. Caparotta, 676 F.3d 213, 216 (1st Cir. 2012) (quoting United
States v. Marceau, 554 F.3d 24, 30 (1st Cir. 2009)). To justify
an unlawful-user sentencing enhancement, the government must prove
these facts by a preponderance of the evidence. See United States
v. Damon, 595 F.3d 395, 399 (1st Cir. 2010).
Of particular relevance here is Caparotta's third
element: temporal nexus. Requiring the government to prove that
element serves two purposes. First, it effectuates Congress's
intent to reach an offender "who is an unlawful user." 18 U.S.C.
§ 922(g)(3) (emphasis added); see also United States v. Augustin,
376 F.3d 135, 138 (3d Cir. 2004) ("The use of the present tense
was not idle. Quite simply, Congress intended the statute to cover
unlawful drug use at or about the time of the possession of the
firearm, with that drug use not remote in time or an isolated
occurrence."). Second, the temporal limitation is necessary "to
avoid unconstitutional vagueness" in the statutory definition.
Marceau, 554 F.3d at 30.
In its presentence investigation report (PSR), probation
calculated Espinoza's Guidelines sentencing range using a BOL of
20 based on the premise that Espinoza was an unlawful user at the
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time of his offenses. Espinoza objected to that characterization.
Relying solely on a translated summary of statements Espinoza made
to probation regarding his drug use (which we will describe in
more detail below), the district court classified Espinoza as an
unlawful user of marijuana at the time of his offenses. For that
reason, the court applied section 2K2.1(a)(4)(B)'s "prohibited
person" enhancement.
On appeal, Espinoza challenges the unlawful-user
determination that led the district court to adopt a BOL of 20.
II.
Espinoza advances two arguments in support of his
contention that the district court erred in concluding that he was
an unlawful user at the time of his offenses.1 His first argument
is a categorical one: A court's classification of a defendant as
a "prohibited person" under section 2K2.1(a)(4)(B) can never rest
solely on a defendant's uncorroborated admission. Alternatively,
Espinoza argues that the particular statements upon which the
district court relied did not provide an adequate basis for the
court's unlawful-user determination.2
1 The district court concluded that Espinoza was "not an
addict." The government does not dispute this finding on appeal.
Thus, our analysis focuses on the question whether Espinoza was
"an unlawful user" at the time of his offenses.
2 Espinoza also gestures at an argument that because he did
not physically possess the guns sold in May 2018, the only question
is whether he was an unlawful user for the purposes of the June 27,
2018 offense. Any such argument is waived for lack of development.
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We consider Espinoza's two arguments in turn.
A.
Espinoza insists that a section 2K2.1(a)(4)(B)
sentencing enhancement "cannot be based on a defendant's
statements alone where no independent evidence in the record
established he was a long-term drug user." In so claiming,
Espinoza relies on our decision in United States v. Tanco-Baez,
where we held that a defendant's "uncorroborated admission" to
long-term drug use did not suffice to support his criminal
conviction under 18 U.S.C. § 922(g)(3). 942 F.3d 7, 25 (1st Cir.
2019).
The government contends that Espinoza did not air this
theory below and has waived it on appeal by failing to recognize
that plain error review applies. Espinoza in reply invokes
precedent indicating that "a defendant's objection need not be
framed with exquisite precision" in order "[t]o preserve a claim
of procedural sentencing error for appellate review." United
States v. Rivera-Berríos, 968 F.3d 130, 134 (1st Cir. 2020).
Although Espinoza is correct as a general matter, we also have
explained that a defendant's objection must be "sufficiently
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It
is not enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel's work."). We assume
without deciding that it is permissible to frame the sentencing
inquiry as whether Espinoza was a prohibited person at the time of
either of his two offenses.
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specific to call the district court's attention to the asserted
[procedural] error." Id. (quoting United States v. Soto-Soto, 855
F.3d 445, 448 n.1 (1st Cir. 2017)). Below, Espinoza argued only
that his statements as memorialized in the PSR did not satisfy
Caparotta's three-part test. This argument did not fairly preserve
the distinct claim that uncorroborated admissions cannot provide
the sole basis for a section 2K2.1(a)(4)(B) enhancement. So we
tend to agree that Espinoza waived that latter claim on appeal by
failing to address the governing standard of plain error review in
his opening brief. See United States v. Pabon, 819 F.3d 26, 33–
34 (1st Cir. 2016); United States v. Mayendía-Blanco, 905 F.3d 26,
32 (1st Cir. 2018).
Nevertheless, the simpler point is that Espinoza's
argument on appeal demonstrates no plain error. An appellant
cannot establish plain error using "case law absent clear and
binding precedent." United States v. Marcano, 525 F.3d 72, 74
(1st Cir. 2008) (per curiam) (citing United States v. Caraballo–
Rodriguez, 480 F.3d 62, 70 (1st Cir. 2007)). Espinoza fails to
locate any such precedent on the relevant issue. He hinges his
argument entirely on a case concerning the quality and quantum of
proof necessary to support a finding of guilt beyond a reasonable
doubt. See Tanco-Baez, 942 F.3d at 15. This case, by contrast,
involves a sentencing enhancement to be supported by a
preponderance of the evidence. See Damon, 595 F.3d at 399. Given
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that substantial difference, Tanco-Baez cannot establish plain
error in this case.
B.
We turn next to the question whether the particular
statements attributed to Espinoza support a section 2K2.1(a)(4)(B)
enhancement in this case. Because Espinoza preserved this claim
below, we review the district court's unlawful-user finding for
abuse of discretion. United States v. García-Pérez, 9 F.4th 48,
52 (1st Cir. 2021). In so doing, we review questions of law de
novo and questions of fact for clear error. Id. "[W]hen there
are two plausible views of the record, the sentencing court's
adoption of one such view cannot be clearly erroneous." United
States v. St. Cyr, 977 F.2d 698, 706 (1st Cir. 1992). On the other
hand, if the court below improperly calculated Espinoza's
Guidelines sentencing range, it committed a "significant
procedural error" that constitutes an abuse of discretion. Gall
v. United States, 552 U.S. 38, 51 (2007).
The PSR's translated summary of Espinoza's relevant
statements reads as follows: "As reported and since age 20 until
arrest, [Espinoza] smokes one or two joints daily of marihuana,
seven days a week. He smokes marihuana because it helps him sleep.
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However, he mentioned that he could spend weeks without smoking
marihuana."3
The district court read this summary as containing two
"direct[ly] contradict[ory]" assertions: That Espinoza used
marijuana every day without interruption to get to sleep, or that
his use could be interrupted by some uncertain number of weeks.
Explaining that it would "decide which [statement] to believe or
not believe," the district court chose the first assertion. On
that basis, it then deemed Espinoza to have been an unlawful user
at the time of his offenses. Whatever might be said about the
permissibility of that choice in a vacuum, we conclude that here,
it was clearly erroneous given other, undisputed evidence in the
record.
That other evidence is Espinoza's post-arrest drug test,
which was negative for controlled substances. Espinoza contends
-- apparently without dispute from the government -- that
urinalysis tests like the one he underwent can detect cannabinoids
for many weeks after their use. Espinoza does not seem to have
invoked any specific figure below, and it is enough for our
purposes to conclude that the negative drug test rendered the
district court's finding of continuous daily use clearly
erroneous. Put simply, the district court's sentencing rationale
3 The PSR indicated that Espinoza "suffers . . . from
insomnia."
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(that Espinoza used marijuana every single night) was not
"plausible" in light of the negative drug test. St. Cyr, 977 F.2d
at 706.4
The government maintains that Espinoza's drug test --
conducted roughly six months after the last charged offense --
"sheds no information as to whether Espinoza used drugs
contemporaneously with the offense." We do not agree. The test
was conducted at the time of Espinoza's arrest, before he spoke
with probation. So its probative force in construing Espinoza's
statement to probation is not diminished by the passage of time
between the charged conduct and the test. This is not to say that
the test proves non-use at the time of Espinoza's offenses. But
it does substantiate Espinoza's claim that he could abstain from
smoking marijuana for periods of time, because it shows that he in
fact did so. As a result, it clearly refutes the contention that
Espinoza's description of his drug use proves uninterrupted
nightly use. And without that reading, the sole rationale offered
by the district court for finding the requisite temporal nexus
disappears.
4 The government appears to suggest that Espinoza raises this
argument for the first time on appeal. But the government stops
short of arguing that plain error review governs the claim. And
for good reason: Espinoza clearly alleged below that "his negative
[drug] test upon his arrest" precluded an unlawful-user finding
under Caparotta.
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In sum, we are "left with the definite and firm
conviction that a mistake [was] committed" below when the district
court concluded that Espinoza used marijuana every night without
exception. United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948). A sentencing enhancement may not rest on a conclusion
belied by undisputed facts. Accordingly, the district court
clearly erred when it chose to "not believe" Espinoza's
substantiated claim that he could go without smoking marijuana.
C.
Having thus found clear error in the sole rationale
offered by the district court for finding the requisite temporal
nexus, we turn to the government's fallback argument that
Espinoza's statements to probation still admit enough to support
a finding of temporal nexus even if they do not establish
uninterrupted nightly use. Although not expressly framed as such,
the argument sounds in harmless error. So we inquire whether "'the
district court would have imposed the same sentence' even without
[its] error." United States v. Tavares, 705 F.3d 4, 25 (1st Cir.
2013) (quoting Williams v. United States, 503 U.S. 193, 203
(1992)).
The government does not argue that a temporal nexus would
exist even if Espinoza had not used marijuana for some uncertain
number of weeks prior to his offenses. Nor does it contend that
we should replace Caparotta's "unlawful user" definition with that
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of 27 C.F.R. § 478.11, which provides that "[a]n inference of
current use may be drawn from evidence of . . . a pattern of use
or possession that reasonably covers the present time."
The government instead contends that the unlawful-user
enhancement should stand because the record indicates that nightly
marijuana use was Espinoza's customary norm, and it is therefore
unlikely that Espinoza happened to be in periods of abstention at
the time of both charged offenses (which occurred roughly a month
apart). The district court never adopted this rationale. To the
contrary, it is fair to conclude that the court implicitly rejected
it. Below, the government did not urge the court to disregard
Espinoza's contention that he could abstain from smoking for weeks
at a time. Rather, the government summarily adopted probation's
proposed BOL, which it recognized was calculated "on the basis of
the statements that [Espinoza] made to the probation officer." In
other words, the government directed the district court to consider
Espinoza's PSR statement as a whole, presumably believing it
supported an unlawful-user enhancement. But the court evidently
did not agree -- otherwise, why would the court (apparently sua
sponte) have proceeded "to decide which [statement] to believe or
not believe"?5
5 We frequently rely on implicit findings of the district
courts in reviewing rather cryptic sentencing explanations. See,
e.g., United States v. Butler-Acevedo, 656 F.3d 97, 100 (1st Cir.
2011) ("Given this record, we cannot say that the district court
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We agree that, at least on this record, evidence of long-
time regular use interrupted by periods of abstention is
insufficient to carry the government's burden to invoke the
enhancement. As an initial matter, the government's probabilistic
reasoning is not as airtight as the government seems to assume.
See, e.g., Charles Nesson, The Evidence or the Event? On Judicial
Proof and the Acceptability of Verdicts, 98 Harv. L. Rev. 1357,
1378–79 (1985) (discussing the "Blue Bus" problem, which posits
that a plaintiff cannot proceed to trial on evidence showing an
80% likelihood that he was injured by a Blue Bus Company vehicle
as opposed to some other bus). Moreover, if one could infer a
temporal nexus from regular use interrupted by some uncertain
period of time, Caparotta's temporal nexus requirement would in
cases like this be largely subsumed by its "regular use"
requirement.
Ultimately, the government bears the burden of proving
qualifying drug use. Damon, 595 F.3d at 399. The foregoing
analysis leads us to conclude that the government's scant proof --
failed to consider [the defendant's] history and characteristics,
even though it did not explicitly refer to these factors."); United
States v. Fey, 834 F.3d 1, 3 (1st Cir. 2016) (explaining that if
a sentencing court "does not explicitly" explain its imposition of
a special condition, "we will attempt to 'infer the court's
reasoning from the record'") (quoting Pabon, 819 F.3d at 31)).
And in this instance, the option of remanding to confirm our
reading of the court's implicit finding is unavailable because the
sentencing judge has regrettably passed away.
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minus the court's clear error in construing Espinoza's statements
to probation -- does not show by a preponderance of the evidence
that Espinoza was unlawfully using marijuana "proximate[ly] to or
contemporaneous[ly] with" his firearm offenses. Caparotta, 676
F.3d at 216 (quoting Marceau, 554 F.3d at 30). As a result, "[w]e
cannot say that the district court's" clearly erroneous sentencing
rationale "'did not affect the . . . selection of the sentence
imposed.'" United States v. Castillo-Torres, 8 F.4th 68, 73 (1st
Cir. 2021) (second alteration in original) (quoting Tavares, 705
F.3d at 26–27). In other words, the court's error was not
harmless. Id. So we will remand for resentencing. See Tavares,
705 F.3d at 25.
III.
In its brief, the government offered no response to
Espinoza's request to limit the factual record on remand -- a
request that is consistent with our past practice and recognition
that "no party -- including the government -- is entitled to an
unlimited number of opportunities to seek the sentence it desires."
United States v. Román-Huertas, 848 F.3d 72, 78 (1st Cir. 2017)
(alteration omitted) (quoting United States v. Ramos-González, 775
F.3d 483, 508 (1st Cir. 2015)).
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We therefore reverse the "prohibited person" enhancement
and remand for resentencing without that enhancement.6
6 This disposition eliminates the need to address Espinoza's
claim that the district court plainly erred under Rehaif v. United
States, 139 S. Ct. 2191 (2019), when it applied the
section 2K2.1(a)(4)(B) enhancement without finding that Espinoza
knew of his status as an unlawful drug user.
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