United States Court of Appeals
For the First Circuit
No. 04-1691
UNITED STATES OF AMERICA,
Appellee,
v.
FRANK J. JIMÉNEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Torruella, Lynch and Lipez,
Circuit Judges.
David J. Wenc, with whom Wenc Law Offices was on brief, for
appellant.
Thomas J. O'Connor, Jr., Assistant United States Attorney,
with whom Michael J. Sullivan, United States Attorney, were on
brief, for appellee.
August 17, 2005
TORRUELLA, Circuit Judge. Appellant Frank J. Jiménez was
charged in a multiple count indictment with possession of a firearm
on July 22, 23, and 24, 2002 (Counts Three, Six, and Eight) in
violation of 18 U.S.C. § 922(g)(1), and possession of a firearm in
furtherance of a drug trafficking crime on July 22, 2002 (Count
Five) in violation of 18 U.S.C. § 924(c). After a jury trial in
the U.S. District Court for Massachusetts, a jury returned guilty
verdicts on all of these charges.
Jiménez appeals on various grounds: (1) he claims error
in the denial of his motion to suppress evidence seized during a
warrantless search of the residence where he was staying; (2) he
alleges that the trial court abused its discretion in refusing his
request for an evidentiary hearing for his second motion to
suppress; (3) he claims that the trial court erred by failing to
admit into evidence the written statement of Rafael Pérez, an
unavailable witness; (4) he objects to the admission of that same
witness's statements contained in a written confession; (5) he
claims that the trial court should have given a proffered "missing
witness" instruction to the jury; (6) he challenges the sufficiency
of the evidence in support of his conviction, and (7) in the event
all else fails, he claims that United States v. Booker, 125 S. Ct.
738 (2005), requires remand of this case for resentencing. For the
reasons stated herein, we reject appellant's contentions and affirm
his conviction.
-2-
I.
Essentially, the dispute concerns not the facts heard by
the jury, but rather the application of the law to them.
Sometime in May 2002, ATF Special Agent Patrick Burns
learned from David Steward, the owner of Triple A Guns, a gun store
in West Springfield, Massachusetts, that a Rafael Pérez had
purchased an unusually large number of firearms during the Spring
of 2002. Burns reviewed Steward's records and confirmed this fact.
Thereafter, Burns met with Michael Veilleux, the owner of another
gun dealership called Guns & Gun Parts, and learned that Pérez had
also purchased an unusually large number of firearms from Veilleux
during that same period. Burns concluded that Pérez was possibly
engaged in some kind of illegal activity and asked Vellieux to
contact him if Pérez returned.
On July 22, 2002, Burns received a call from Veilleux,
alerting him to the presence of Pérez at his store. Pérez was in
the process of purchasing another firearm. Burns proceeded to the
store and set up surveillance, whereupon he observed Pérez coming
out of the store carrying a bag and accompanied by a child and a
man, whom Burns was later able to identify as appellant Jiménez.
Pérez had just purchased a Model P-85 Ruger pistol. Pérez, the
child, and Jiménez got into a car that was registered to Pérez's
wife at an address in Springfield, and drove away, with agent Burns
attempting to follow them.
-3-
Burns lost Pérez in traffic and decided to proceed to the
Springfield address to set up surveillance there. At some point
Pérez drove up, got out with the child and went into the house at
that address. Pérez was empty-handed.
Burns returned to Veilleux's store and learned that the
man who had accompanied Pérez had two tattoos on his arm: one said
"Freaky" and the other "La Familia." Burns then checked with the
Springfield Police Department, where he received information
connecting appellant Jiménez with those tattoos, obtained a
photograph of Jiménez, and learned that his street alias was
"Freaky" or "Freaky-tie."
On July 23, 2002, Veilleux called Burns again to indicate
that Pérez was back at his store with the same man as before, to
purchase another firearm. Burns proceeded to the store and was
able to observe the Pérez/Jiménez duo coming out of the store
together. They got into a different car than the day before and
drove away, again with Burns tailing them, but with no better
results, losing them in traffic.
On July 25, 2002, Burns and Springfield Police Detective
Ricardo Ortiz interviewed Pérez regarding his numerous firearms
purchases. Pérez told the agents that a friend of his named
"Frank" was holding some of the firearms he recently had purchased.
Pérez stated that he did not know Frank's full name, but would show
them where Frank lived. He then took Burns and Ortiz to the place
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where Frank was staying in Springfield, located at 105 Jefferson
Street.
Upon arrival, the lessee of the premises, Elsa Rodríguez,
authorized the agents to search the residence. When they reached
the second floor they were able to detect the odor of burning
marihuana emanating from the front bedroom, the door to which was
closed and locked, and which Rodríguez indicated was being used by
appellant Jiménez. Rodríguez used a butter knife to force the lock
open, and the agents proceeded to enter Jiménez's room. Inside
they found a hand gun case, ammunition, cash, marihuana, and a
digital scale. Jiménez was not in the room. Next, they proceeded
to the rear bedroom, which belonged to Rodríguez, where they found
Jiménez hiding on the floor next to a bed. Ortiz drew his weapon
and called for Jiménez to show himself. When he stood up, Ortiz
recognized him as being "Freaky," put him under arrest and placed
handcuffs on him. At this point, another man emerged from the
closet where he had been hiding and indicated that Jiménez had put
a gun inside a pillowcase that was on the bed. Ortiz looked inside
the pillowcase and found a 9 millimeter Ruger, Model P-89, pistol,
bearing serial number 310-76049.
Jiménez was transported to the Springfield police station
whereupon the agents returned to the bedroom that Jiménez had been
using and seized the evidence they had found previously.
-5-
Burns and Ortiz returned to the police station to talk to
Jiménez, whom they advised of his Miranda rights. Jiménez agreed
to waive these and provided the agents with a written statement.
In his statement, Jiménez told the agents that Pérez came to him
looking for heroin "[t]his past Monday," meaning July 22, 2002, but
that Pérez did not have any money with which to pay for the drugs.
Pérez offered to "give [Jiménez] one gun instead of cash and when
he got cash he would pay with cash and get the gun back." Jiménez
then went with Pérez to Guns & Gun Parts, where Pérez purchased a
gun, and Jiménez then gave Pérez some heroin. Pérez gave him "a 9
mm. I think it was a Ruger." Jiménez further stated that Pérez
"returned with cash, which he said he earned by finding a buyer for
the gun. I gave him the gun and he said he sold it." The records
at Guns & Gun Parts showed that Pérez purchased a 9 millimeter
Ruger, Model P-85, pistol, with serial number 301-09664. This gun
was not recovered.
Jiménez further stated that he and Pérez went again to
the same gun store the following day, July 23, 2002, where Pérez
purchased another firearm. The store records show that Pérez's
purchase on that day was a 9 millimeter Ruger, Model P-89, pistol,
with serial number 310-76049. This was the same firearm seized
from the pillowcase at the time of Jiménez's arrest, and Jiménez
admitted to hiding the gun there.
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Jiménez also stated that Pérez gave him two more guns on
or about July 24, 2002, one of which was a .380 caliber firearm,
which he in turn gave to an individual called "Jinxx." Jiménez did
not know "Jinxx's" real name or exact address, but was able to
provide his physical description, and agreed to take the agents to
where he lived. On July 26, 2002, Jiménez showed Springfield
Police Detective Misael Rodríguez where "Jinxx" resided at 2718
Main Street in Springfield. Later that day, Detective Rodríguez
returned to that address and knocked on the door of the apartment
described by Jiménez as belonging to "Jinxx," whereupon a man
fitting the physical description of "Jinxx" supplied by Jiménez
open the door. "Jinxx" consented to a search of his apartment,
during the course of which Detective Rodríguez found and seized a
.380 caliber Bersa, Model 85, pistol, bearing serial number 295197,
which had been hidden above the tiles of a drop ceiling in the
bathroom. The records of Triple A Guns showed that Pérez had
purchased this gun on July 23, 2004.
At trial, it was stipulated that the two firearms seized
-- the 9 millimeter Ruger, Model P-89, pistol and the .380 caliber
Bersa pistol -- were manufactured outside of the Commonwealth of
Massachusetts, and that on July 6, 2001, prior to the commission of
the charged offenses in this case, Jiménez had been convicted of
assault in the Springfield District Court, an offense punishable by
a term of imprisonment exceeding one year.
-7-
II.
A. The evidence seized from Jiménez's room
We review a district court's decision regarding
suppression of evidence under a bifurcated standard of review,
United States v. Charles, 312 F.3d 10, 18 (1st Cir. 2000), whereby
factual findings are examined for clear error, United States v.
Lee, 317 F.3d 26, 29 (1st Cir. 2003), cert. denied, 538 U.S. 1048,
while questions of law receive de novo scrutiny, id.
Jiménez challenges the seizure of the evidence found in
his bedroom at 105 Jefferson Street on the basis that Rodríguez did
not have the authority to consent to the warrantless search of his
bedroom. The government contends that the evidence seized from
Jiménez's room was properly admissible as evidence discovered
pursuant to (1) a consent search, or (2) a protective sweep. Upon
careful examination of the record, we agree that Rodríguez did not
have authority to consent to the search of that particular room,
and we question whether the agents were permitted to conduct a
protective sweep of the room under the circumstances of this case.
Regardless, we cannot but conclude that any error which might exist
in admitting evidence from the search of Jiménez's room is
harmless.
The Fourth Amendment's right to be free from unreasonable
searches and seizures is grounded on the individual's expectation
of privacy. See United States v. Thornley, 707 F.2d 622, 624 (1st
-8-
Cir. 1984) ("Whether the Fourth Amendment's prohibition against
unreasonable searches and seizures has been violated depends on
whether the person asserting a Fourth Amendment violation had a
reasonable expectation of privacy in the place searched or the
thing seized."). Jiménez was entitled to some expectation of
privacy as to the bedroom he was using in Rodríguez's home. See
Minnesota v. Olson, 495 U.S. 91, 96-97 (1990) (holding that an
overnight guest has an expectation of privacy in the home in which
he is staying).
Rodríguez had the authority to consent to the search of
the common spaces of the house. See United States v. Matlock, 415
U.S. 164, 171 (1974) (Permission to search may be obtained from a
third party who possesses common authority over the premises.).
She clearly had common authority to consent to the search of her
own bedroom, where Jiménez was found and arrested. Rodríguez did
not, however, have the common authority over Jiménez's bedroom in
order to give the police consent to search it. The authority which
justifies third-party consent to search rests upon
mutual use of the property by persons
generally having joint access or control for
most purposes, so that it is reasonable to
recognize that any of the co-habitants has the
right to permit the inspection in his own
right and that the others have assumed the
risk that one of their number might permit the
common area to be searched.
United States v. Hyson, 721 F.2d 856, 859 (1st Cir. 1983) (quoting
Matlock, 415 U.S. at 171 n.7). In her testimony, Rodríguez
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characterized Jiménez's bedroom as "his space." She did not enter
the room as a regular matter, and she told police before they
entered that she was not supposed to enter the room. Rodríguez did
not even have a key to go into the room and instead had to use a
butter knife to pry the door open. We find, therefore, that
Rodríguez's consent to the search of the house could not extend to
the search of the room Jiménez was using.
The fact that the agents smelled the scent of burning
marihuana emanating from the room when they reached the second
floor does not cure the problem. "'[O]dors alone do not authorize
a search without a warrant.'" United States v. Sharpe, 470 U.S.
675, 699 n.12 (1985) (quoting Johnson v. United States, 333 U.S.
10, 13 (1948)). Where the odor of a forbidden substance is
identified by someone found qualified to know the odor, there may
well be probable cause to justify issuance of a search warrant,
Johnson, 333 U.S. at 13, but it is not sufficient to justify a
warrantless search. Horton v. California, 496 U.S. 128, 137 n.7
(1990) (collecting cases on the rule that "no amount of probable
cause can justify a warrantless search or seizure absent 'exigent
circumstances'"). The government does not argue otherwise.
The government also contends that Jiménez's room was
properly searched by the agents as they were conducting a
"protective sweep." The government argues that the search of
Jiménez's bedroom was justified because the agents had a reasonable
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basis for believing that Jiménez was present in the home, was using
marihuana, was likely armed with a gun he received from Pérez, and
therefore posed a potential danger to them as they conducted their
search.
The Supreme Court has defined a "protective sweep" as "a
quick and limited search of premises, incident to an arrest and
conducted to protect the safety of police officers or others."
Maryland v. Buie, 494 U.S. 325, 327 (1990). This is set within the
context of the longstanding view that "[t]he touchstone of the
Fourth Amendment is reasonableness, and the reasonableness of a
search is determined 'by assessing, on the one hand, the degree to
which it intrudes upon an individual's privacy and, on the other,
the degree to which it is needed for the promotion of legitimate
governmental interests.'" United States v. Knights, 534 U.S. 112,
118-19 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300
(1999)). Hence, "the searching officer [must] possess[] a
reasonable belief based on specific and articulable facts which,
taken together with the rational inferences from those facts,
reasonably warrant[] the officer in believing . . . that the area
swept harbored an individual posing a danger to the officer or
others." Buie, 494 U.S. at 327 (internal quotation marks and
citations omitted).
-11-
This case presents the difficult issue of determining
whether or not a protective sweep was objectively reasonable under
the circumstances.
Although Buie concerns protective sweeps incident to
arrest, this court has extended this doctrine to include protective
sweeps in conjunction with the execution of search warrants, Drohan
v. Vaughn, 176 F.3d 17, 22 (1st Cir. 1999); United States v. Doust,
916 F.2d 757, 759 (1st Cir. 1990), and recently to include
protective sweeps where the existence of exigent circumstances
prompts the entry of police, United States v. Martins, -- F.3d --,
No. 04-1474, 2005 WL 1502939 (1st Cir. June 27, 2005).
In this case, Rodríguez denied that Jiménez was home, but
gave the agents permission to enter the house and search for
Jiménez and firearms. The agents did not have a warrant for
Jiménez's arrest or a search warrant. No one was under arrest at
the time the agents searched the room Jiménez was using, and no
exigent circumstances allowed for their entry into the home. The
government contends that the smell of smoke emanating from the
front room escalated the threat the agents were facing during their
search because it was reasonable for them to suspect that Jiménez
was in the house, smoking marihuana, likely in possession of a
firearm, and possibly lying in wait for them.
Given that the agents were in the home for the purpose of
searching for Jiménez, they must have already had some suspicion
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that he was there. The fact that Rodríguez opened the room for
them with a butter knife suggests that she was not afraid of what
might have been on the other side of the door and the agents were
not particularly concerned for her safety. Under the
circumstances, and based on the limited recitation of the facts we
are presented with and the lack of reasonableness determination
made by the district court below, we are not at all certain whether
a protective sweep, to include Jiménez's locked bedroom, was
appropriate under these circumstances.
In the instant case, however, the question of whether the
protective sweep justifies the warrantless search of Jiménez's
bedroom is of no moment, because the error of admitting the
evidence seized from the room, if any, is harmless. Where, as
here, the objection is preserved, erroneous admission of improperly
seized evidence at trial is reviewed for harmless error. United
States v. Barone, 114 F.3d 1284, 1293 (1st Cir. 1997). Under
harmless error review, the burden is on the government to show that
the supposed error did not affect the outcome of trial. United
States v. Castellini, 392 F.3d 35, 52 (1st Cir. 2004) (considering
factors such as "considering, among other things, the centrality of
the tainted material, its uniqueness, its prejudicial impact, the
uses to which it was put during the trial, the relative strengths
of the parties' cases").
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The physical evidence seized from Jiménez's bedroom pales
in light of the other evidence introduced at trial, including
Jiménez's undoubtedly voluntary and fully corroborated confession,
in which he admitted that (1) he and Pérez entered into a guns-for-
heroin agreement, (2) they consumated that agreement on July 22,
2002, when Pérez purchased what was later determined to be a 9
millimeter Ruger Model P-85 pistol, which he used as a deposit with
Jiménez in exchange for heroin, pending later substitution for
cash, (3) Pérez later returned to pay cash in exchange for the
Ruger, and (4) he possessed other firearms obtained from Pérez,
including the Ruger Model P-89 pistol that was seized from the
pillowcase and the Bersa pistol that was later recovered from
"Jinxx" at his home. Further evidence against Jiménez, both
testimonial and documentary, corroborated Jiménez and Pérez's
presence at Guns & Gun Parts on July 22 and 23, 2004, and the
purchase of the guns which he confessed to possessing. This,
together with copious other documentary, physical and testimonial
evidence, was more than sufficient to convict Jiménez, irrespective
of the evidence seized from his bedroom.
B. The district court's refusal to hold a second suppression
hearing regarding Jiménez's inculpatory statements to Detective
Rodríguez
On June 3, 2003, Jiménez filed a motion to suppress his
post-arrest statements, challenging his waiver of his Miranda
rights and the voluntariness of the written confession he made
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shortly after his arrest. On July 11, 2003, the district court
held an evidentiary hearing and denied Jiménez's motion, ruling
that Jiménez's waiver and subsequent confession were voluntary. We
see no valid reason for disagreeing with these rulings.
Shortly before trial, Jiménez sought to suppress an
additional statement he made to Detective Rodríguez regarding his
heroin sources and his cooperation with the police in the recovery
of the Bersa pistol, which were not part of his earlier confession.
He sought suppression again on the basis of alleged
involuntariness, as well as the alleged failure to waive Miranda
rights. On January 9, 2003, the district court held a non-
evidentiary hearing, and relying in part on the evidence heard at
the original suppression hearing, concluded that the brief lapse of
time -- five to six hours -- between the original Miranda warnings
and confession, and the later statements to Detective Rodríguez,
did not vitiate the voluntariness of the statements.
We review the district court's decision not to hold an
evidentiary hearing for abuse of discretion. United States v.
Calderón, 77 F.3d 6, 9 (1st Cir. 1996). "A hearing is required
only if the movant makes a sufficient threshold showing that
material facts are in doubt or dispute, and that such facts cannot
reliably be resolved on a paper record." United States v. Staula,
80 F.3d 596, 603 (1st Cir. 1996). The purpose of a voluntariness
hearing is to ensure that unreliable, coerced confessions are not
-15-
used to secure a defendant's conviction. Jackson v. Denno, 378
U.S. 368, 376-77 (1964). Nothing in Jackson, or Sims v. Georgia,
385 U.S. 538 (1967), another case Jiménez relies on, makes the
holding of a voluntariness hearing mandatory where the facts are
not disputed and the district court can therefore reach a
determination about voluntariness without the need for additional
evidence. Such are the present circumstances.
The district court had already heard evidence at the
previous evidentiary hearing about the circumstances surrounding
Jiménez's written confession and his waiver of his Miranda rights.
The court was also on notice about Jiménez's use of alcohol and
liquor, and of the lapse of time between his written confession and
his oral statements to Detective Rodríguez. In denying Jiménez's
request, the district judge made specific reference to these
matters. The court then concluded that the lapse of time between
the Miranda waiver and the written confession, and the statements
to Detective Rodríguez, was insufficient to nullify the Miranda
warning or render the later statements involuntary.
Given these circumstances, there was no abuse of
discretion in the court's refusal to hold a second evidentiary
hearing.
C. The refusal to admit Pérez's confession
On July 26, 2002, Pérez made a written confession to law
enforcement officials in which he spelled out his relationship to
-16-
Jiménez, and in which he stated that he did not provide guns to
Jiménez in exchange for heroin. At trial, Jiménez attempted to
introduce into evidence this part of Pérez's statement, alleging
that the statement was admissible under Federal Rule of Evidence
804(b)(3), as a statement against penal interest.1 The court
denied admission, ruling that said portion of Pérez's statement was
not against penal interest, and that in any event, corroboration
was lacking.
The standard of review for an evidentiary ruling is abuse
of discretion. United States v. Otero-Méndez, 273 F.3d 46, 53 (1st
Cir. 2001). Abuse of discretion occurs "when a relevant factor
deserving of significant weight is overlooked, or when an improper
factor is accorded significant weight, or when the court considers
the appropriate mix of factors, but commits a palpable error of
judgment in calibrating the decisional scales." United States v.
Gilbert, 229 F.3d 15, 21 (1st Cir. 2000) (quoting United States v.
Roberts, 978 F.2d 17, 21 (1st Cir. 1992)).
For a statement to be against penal interest it must tend
to subject the declarant to criminal liability to such an extent
that a reasonable person would not make the statement unless it
were true. Williamson v. United States, 512 U.S. 594, 599 (1994).
1
Fed. R. Evid. 804(b)(3) reads in its pertinent part: "A
statement tending to expose the declarant to criminal liability and
offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of
the statement."
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There was clearly no abuse of discretion in the district
court's evidentiary ruling. Pérez's statement that he never
exchanged guns for heroin with Jiménez did not inculpate Pérez of
any crime, but rather exculpated him of criminal liability under 18
U.S.C. § 924(c). The fact that it also exculpated Jiménez of that
crime is immaterial to its admission under Rule 804(b)(3). If
Pérez wanted to exculpate Jiménez on the information contained in
his extra-judicial statement, he had to testify in court, under
oath, and subject to cross-examination. This he refused to do, as
was within his rights.
Having so decided, we need not discuss the issue of
whether the statement was also inadmissible for lack of
corroboration.
D. The admission of Jiménez's confession on the basis of alleged
violations to the Confrontation Clause
The confession of Jiménez that was admitted into evidence
recounts conversations that he had with Pérez about the sale of
heroin, the use of firearms as collateral for these transactions,
and the various specific firearms that Pérez provided. Although
Jiménez sought suppression of these statements as part of his
allegation of involuntariness of the confession, a matter we have
previously discussed, he now raises, for the first time, an
objection to the statements made by Pérez that are repeated by
Jiménez in that confession, claiming that by admitting the same,
the district court deprived him of his right to confront that
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witness. Jiménez also objects to the testimony of Detective Ortiz
and Agent Burns, previously detailed, in which they testified to
statements by Pérez during the course of their investigation of
Jiménez's activities. Since no objection was made to any of this
evidence during trial, we review this matter for plain error.
Barone, 114 F.3d at 1293.
Jiménez's reliance on Crawford v. Washington, 541 U.S.
36 (2004), is misguided. "The [Confrontation] Clause [] does not
bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted." Id. at 59 n.9.
The challenged statements were properly admissible, not for their
truth, but to provide context to (1) Jiménez's admissions in his
written confession, and (2) the investigatory steps pursued by
Burns and Ortiz. United States v. McDowell, 918 F.2d 1004, 1007
(1st Cir. 1990) ("[A] defendant, having made admissions, [cannot]
keep from the jury other segments of the discussion reasonably
required to place those admissions into context.").
Such is the present situation. Not only is there no
plain error, there is no error at all.
Furthermore, it can be fairly said that Jiménez adopted
all of Pérez's statements in his confession. Therefore, even were
Pérez's statements therein admitted for the truth of what Pérez
said, the Confrontation Clause is not implicated when there is
adoption of such statements by the defendant, who thus becomes the
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declarant or "witness" himself. United States v. Allen, 10 F.3d
405, 413 (7th Cir. 1993).
E. The "missing witness" instruction
Jiménez sought to call Pérez as a witness at trial, but
Pérez invoked his Fifth Amendment right to refuse to testify. At
the conclusion of the trial, Jiménez asked that the jury be given
a "missing witness" instruction under the theory that Pérez was
"peculiarly available" to the government since it could have
immunized Pérez. The district judge rejected the request, a
decision which we review under an abuse of discretion standard.
United States v. Otero-Méndez, 273 F.3d 46, 55 (1st Cir. 2001).
Again, there has been no abuse of discretion but rather,
the district court followed the circuit precedent established in
United States v. St. Michael's Credit Union, 880 F.2d 579, 597 (1st
Cir. 1989), in which the identical issue raised by Jiménez was
decided in the identical manner as was decided by the district
court in this case. In St. Michael's, we held that the
government's power to grant immunity from prosecution to a witness
does not make that witness more available, or "peculiarly
available" to the government. Id.
F. The sufficiency of the evidence
In a nutshell, Jiménez challenges the sufficiency of the
evidence that he possessed a firearm in furtherance of a drug
trafficking crime. His contention is predicated on two points: (1)
-20-
that his confession as to that charge was not adequately
corroborated, and (2) that the government did not prove that he
possessed a firearm in furtherance of a drug trafficking crime.
We review the district court's denial of a motion for
acquittal for insufficiency of evidence de novo. Staula, 80 F.3d
at 604. "If the evidence presented, taken in the light most
agreeable to the government, is adequate to permit a rational jury
to find each essential element of the offense of conviction beyond
a reasonable doubt, then the defendant's claim fails." United
States v. Valle, 72 F.3d 210, 216 (1st Cir. 1995). The court must
"choose from among competing inferences the one best fitting the
prosecution's theory of guilt." United States v. Licausi, 167 F.3d
36, 45 (1st Cir. 1999). "The evidence may be entirely
circumstantial, and the government need not disprove every
hypothesis of innocence." United States v. Escobar De-Jesús, 187
F.3d 148, 172 (1st Cir. 1999). We need "only satisfy [ourselves]
that the guilty verdict finds support in a plausible rendition of
the record." Licausi, 167 F.3d at 45 (internal quotation marks
omitted). See also United States v. Ortiz, 966 F.2d 707, 711 (1st
Cir. 1992) (same).
Pérez's use of firearms as collateral to purchase heroin
from Jiménez is corroborated beyond doubt, by testimonial,
documentary, and physical evidence, and is detailed earlier in this
opinion at pages five and six. We need not repeat ourselves.
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The corroborated evidence establishes that firearms were
used in furtherance of a drug crime, because the use of the
firearms as collateral facilitated the sale of heroin by Jiménez to
Pérez.
G. Booker Sentencing Issue
Jiménez appeals from a sentence imposed prior to the
Supreme Court's decision in United States v. Booker, 543 U.S. ---,
125 S. Ct. 738 (2005). In his supplemental Booker brief, Jiménez
argues that the district court erred in sentencing him under a
mandatory Guidelines system and that he is entitled to resentencing
in conformance with Booker.2 The government opposes a remand.
Jiménez acknowledges that his claim of Booker error is
unpreserved. See United States v. Antonakopoulos, 399 F.3d 68, 76
(1st Cir. 2005) (A Booker error is preserved "if the defendant
below argued Apprendi or Blakeley error or that the Guidelines were
unconstitutional").
Following his conviction, Jiménez was sentenced in
accordance with the then-mandatory Guidelines to 110 months'
imprisonment for his conviction as a felon in possession of a
2
Appellant's original brief was filed in January 2005, before
Booker was decided, and was thus based mostly on Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. --
-, 124 S. Ct. 2531 (2004), although it does not appear that these
issues were preserved. After Booker was decided, we afforded the
appellant an opportunity to file a supplemental brief.
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firearm, to be followed by an additional 60 months' imprisonment
mandated by his 18 U.S.C. § 924(c) conviction.
Both the government and Jiménez objected to the
presentence report, with Jiménez seeking a downward departure, and
the government wanting an upward adjustment based on allegations of
obstruction of justice.3 The district judge denied both motions.
In deciding the sentence to be imposed, the court added
three additional criminal history points for a subtotal of 9. To
that were added two points pursuant to U.S. Sentencing Guidelines
(U.S.S.G.) § 4A1.1(d), on the basis that Jiménez was under the
criminal justice sentences imposed on June 7, 1999 and July 6, 2001
in the Springfield District Court. An additional point was then
added pursuant to U.S.S.G. § 4A1.1 (c), because the present
offenses were committed less than two years following appellant's
release from custody on December 21, 2001 (for the June 7, 1999 and
July 6, 2001 sentences).
Although appellant recognizes that our Antonakopoulos
decision concluded that Booker error is not "structural,"
Antonakopoulos, 399 F.3d at 80, and thus does not automatically
require resentencing, he asks us to reconsider that conclusion. We
cannot, however, oblige. "Absent unusual circumstances not present
here, panels of this court are bound by prior circuit decisions."
3
While in pretrial detention Jiménez was recorded trying to
persuade Rodríguez to testify falsely at the suppression hearing.
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United States v. Villafañe-Jiménez, 410 F.3d 74, 85 (1st Cir.
2005).
In Antonakopoulos, we determined that we review
unpreserved Booker claims for plain error. Antonakopoulos, 399
F.3d at 75. For Jiménez's claim to survive plain error review,
this court must find a reasonable probability that the district
court would impose a more favorable sentence on Jiménez under the
new advisory Guidelines. Id. at 75.
Jiménez argues that the district court would likely have
imposed a different sentence were it not for the mandatory
Guidelines regime, because the Guidelines circumscribed the court's
ability to consider many factors Jiménez presented in support of
motions for downward departure, including substituting community
confinement for prison, cooperation with state and local
authorities, over-representation of the seriousness of criminal
history, extraordinary family circumstances, diminished capacity,
emotional and mental health problems, substance abuse problems, the
disparity in how Jiménez was charged compared to Rodríguez and
Pérez, and credit for state time served. It is apparent from the
record that the district court felt restricted by the Guidelines in
its consideration of at least some of these arguments. For
example, at the sentencing hearing, the court stated that:
Family circumstances are just
heartbreaking. The notion that there will be
three [] children who now will be growing up
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without their father there for them is just
terrible to even contemplate.
But this is not the kind of situation
that –- the courts have made clear this is not
the kind of situation where I can downward
depart.
The district court went on to state:
I will tell you . . . that I am not
going to impose a sentence higher than the 170
months which is the very bottom end of the
Guideline range, and which under federal law I
believe is the lowest sentence that I am
entitled to impose.
I believe any sentence below 170 months
would be an error that would be corrected by
the Court of Appeals and would be a sentence
that I'm simply not permitted to impose as a
matter of law.
While these statements clearly suggest that the district
court might have imposed a more lenient sentence if the Guidelines
had been advisory at that time, his next statement tears this
likelihood asunder:
Even if I had the discretion, which I do not
believe I have, but I will say even if I had
the discretion to depart downward under these
circumstances, I'm afraid I would not exercise
it. I believe 170 months is the lowest
possible sentence under these circumstances.
Thus, Booker is of no avail to Jiménez in opening the
possibility of altering his sentence.
III.
For the reasons stated herein, the conviction of
appellant is affirmed.
Affirmed.
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United States v. Jiminez
Court: Court of Appeals for the First Circuit
Date filed: 2005-08-17
Citations: 419 F.3d 34
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