United States v. Marceau

United States Court of Appeals
For the First Circuit

No. 08-1011

UNITED STATES OF AMERICA,

Appellee,

v.

TENNYSON MARCEAU,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Torruella, Baldock and Howard,
Circuit Judges.

Virginia G. Villa, Assistant Federal Defender, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Paula D. Silsby, United States Attorney, was on brief, for
appellee.

January 26, 2009
 HOWARD, Circuit Judge. Appellant Tennyson Marceau pled

guilty to stealing guns from a Maine firearms dealer. The district

court imposed the statutory maximum prison sentence of ten years.

On appeal, Marceau claims that his sentence is unreasonable,

especially when compared to the eighteen-month sentence imposed on

his partner in the crime. He also argues that the district court

made certain Guideline-related errors and that two of the Guideline

provisions applied to him were improperly enacted. We affirm.

I. BACKGROUND1

In the early morning hours of April 23, 2007, police

officers in Brewer, Maine responded to an alarm at Maine Military

Supply ("MMS"), a firearms dealer. The responding officers found

several signs of a break-in and theft of firearms. A video

surveillance system captured the images of two men, one of whom

threw a projectile through the premises' glass door. Both men were

recorded as they placed several handguns and AK-47 assault rifles

into a duffel bag before leaving the scene in a white Jeep. The

store's owner reported that fifteen guns were stolen -- eight

rifles and seven pistols. Several of the stolen firearms were

semi-automatic and capable of accepting large capacity magazines.

1
We take the facts from the Prosecution Version of Events -- to
which Marceau admitted during his plea colloquy -- and the Revised
Presentence Investigation Report ("PSR"), the facts of which were
not challenged.

-2-
 Investigation led police to the owner of the Jeep, Sayer

Tamiso, and eventually to Tamiso's girlfriend, who told police that

she overheard Tamiso and Marceau make plans to commit the robbery.

Part of the plan was that Marceau would bring the stolen guns to

his home in Vermont, remove their serial numbers, and eventually

sell them. She also said that she confronted Tamiso after seeing

a television news account of the robbery, and that he admitted the

two men's involvement. Other witnesses and physical evidence also

connected Tamiso and Marceau to each other and to the crime.

A subsequent search of Marceau's Vermont home yielded gun

tags corresponding to items stolen from MMS.2 After learning that

Marceau occasionally stayed at his grandmother's home, police also

conducted a search there and recovered several rifles from the

Maine robbery. In addition, two stolen guns were recovered from a

friend of Marceau's. Authorities determined that of the fifteen

guns stolen, Marceau brought thirteen to Vermont, nine of which

were recovered. Marceau said he gave the other four to an

individual he would not identify. Tamiso told authorities he kept

two of the stolen guns, but later threw them into a river.

Although Tamiso provided a location for his disposal, the two guns

were never recovered. Finally, Vermont authorities recovered a gun

2
Vermont law enforcement officers were familiar with Marceau
because he had been arrested for possession with intent to
distribute marijuana about a week after the MMS robbery.

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with an obliterated serial number from a man who said he bought it

from Marceau. This gun was not connected to the MMS robbery.

Marceau was arrested in May 2007. He pled guilty the

following month to a one-count information charging him with theft

of firearms, in violation of 18 U.S.C. § 922(u).

In the PSR, the Probation Department first recounted the

facts of the burglary and then turned to the Guidelines

calculation. Citing U.S.S.G. § 2K2.1(a)(4)(B), the PSR determined

Marceau's base offense level ("BOL") to be twenty -- as opposed to

the default level of twelve, U.S.S.G. § 2K.1(a)(7) -- because the

theft involved semi-automatic firearms capable of accepting large

capacity magazines and because Marceau was a "prohibited person" at

the time of the crime by virtue of his ongoing drug use, see 18

U.S.C. § 922(g). Four levels were added due to the number of

firearms stolen. U.S.S.G. § 2K2.1(b)(1)(B). An additional four

levels were added pursuant to U.S.S.G. § 2K2.1(b)(6)3 because

Marceau was carrying a weapon at the time of the MMS robbery -- a

twenty-five caliber pistol. Yet another four levels were added

because Marceau was trafficking the stolen firearms, id. §

2K2.1(b)(5), and four more levels were added as a result of his

possession of a firearm with an obliterated serial number, U.S.S.G.

3
Section 2K2.1(b)(6) applies to defendants who use or possess "any
firearm or ammunition in connection with another felony offense; or
possessed or transferred any firearm or ammunition with knowledge,
intent, or reason to believe that it would be used in connection
with another felony offense."

-4-
§ 2K2.1(b)(4)(B). From this total adjusted offense level of

thirty-six, a three-level downward adjustment for acceptance of

responsibility was applied, for a total offense level of thirty-

three.

When combined with a criminal history category of II,4

Marceau's recommended Guideline range was 151 to 181 months. The

applicable statutory maximum, however, was 120 months. The

district court adopted the findings of the Probation Officer and

sentenced Marceau to 120 months' imprisonment. Approximately one

month later, the same district court judge sentenced Tamiso to 18

months' imprisonment.

II. ANALYSIS

Marceau's appeal takes aim at various specific components

of his offense level calculation, and also at the overall

reasonableness of his sentence. We discuss each contention in

turn. We review de novo the district court's reading of Guideline

provisions. United States v. Stoupis, 530 F.3d 82, 84 (1st Cir.

2008). Factual findings are reviewed for clear error. Id.

4
Marceau's criminal record included Vermont convictions for simple
assault in 2006 and illegal alcohol consumption, providing false
information to a police officer and violating conditions of release
in 2007. Each conviction was worth one criminal history point.

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A. Offense level increase for semi-automatic firearms

1. Semi-automatic weapon ban

Marceau first argues that the eight-level offense level

increase (from twelve to twenty) for theft of semi-automatic

weapons should not have been applied because Congress allowed the

statutory proscription against possessing such weapons to expire in

2004. Thus, Marceau argues, the Sentencing Commission exceeded its

authority in April 2006 when it voted to retain the enhancement.

We disagree. Before detailing our reasoning, we sketch the

relevant background.

The Violent Crime Control and Enforcement Act of 19945

made possession of various semi-automatic firearms illegal, but

contained a sunset provision under which the ban expired September

13, 2004, ten years after its implementation. See 18 U.S.C. §

922(v)(declaring weapons unlawful)(repealed 2004); 21 U.S.C. §

921(a)(30) (defining semiautomatic assault weapon)(repealed 2004);

see also 26 U.S.C. § 5845 (defining firearm). Responding to

directives within the 1994 Act, the Sentencing Commission adopted

Amendment 522, which amended U.S.S.G. § 2K2.1 to enhance base

offense levels for possession of statutorily-defined semi-automatic

assault weapons, without regard to their use in another offense.

Also enacted was Amendment 531, which prescribed an upward

5
Pub. L. No. 103-322, §§ 110102, 110105, 108 Stat. 1796, 1996-98,
2000.

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departure for semi-automatic firearms with a capacity exceeding ten

cartridges possessed in connection with a crime of violence or

controlled substance offense. Both amendments became effective

November 1, 1995.

Courts responded to the expiration of the weapons ban in

different ways. Some questioned whether the expired ban could

continue to support sentence enhancements, see, e.g., United States

v. Serna, 435 F.3d 1046 (9th Cir. 2006) (questioning whether

possession of an assault weapon was a "crime of violence" for

Guidelines purposes), while others applied the enhancement without

regard to the present legality of the weapon, see, e.g., United

States v. Ray, 411 F.3d 900 (8th Cir. 2005); United States v. Vega,

392 F.3d 1281 (11th Cir. 2004).

In response to what it described as "inconsistent

application" of the enhanced base offense level following the

expiration of the weapons ban, the Commission subsequently adopted

Amendment 691, which deleted the explicit statutory reference to

the now-expired weapons ban, and instead applied the enhanced

offense level in §2K2.1(a)(4)(B) to "a semiautomatic weapon capable

of accepting a large capacity magazine." Amendment 691 took effect

November 1, 2006, and was in effect at the time of Marceau's

sentencing. Marceau argues that enactment of Amendment 691 after

the expiration of the assault weapon ban violated the Commission's

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obligation to promulgate Guidelines "consistent with all pertinent

provisions of any Federal statute." 28 U.S.C. § 994(a)(1).

While it is true that Congress has granted the Commission

broad discretion with respect to Guideline formulation, the

Commission must nevertheless "bow to the specific directives of

Congress." United States v. LaBonte, 520 U.S. 751, 757 (1997);

Mistretta v. United States, 488 U.S. 361, 377 (1989). Thus, if

Amendment 691 "is at odds with [a statute's] plain language, it

must give way." LaBonte, 520 U.S. at 757. In this case, however,

we agree with the district court that the enhanced BOL in Amendment

691 is not at odds with any statute because it does not penalize

the mere possession of legal firearms, but only possession by

certain "prohibited persons."

The district court approvingly cited Ray, in which the

Eighth Circuit affirmed the district court's application of the

section 2K2.1(a)(4)(B) enhancement to a defendant who possessed a

semi-automatic weapon which remained legal due to a "grandfather"

clause in the 1994 Act. Rejecting the argument that the

enhancement could only be applied to illegal weapons, the Ray court

concluded that "[t]hrough § 2K2.1(a)(4)(B), the sentencing

commission decided to punish more severely the possession of

semiautomatic firearms, even those of the pre-ban variety," by

those who have lost the right to possess firearms. Id. at 906;

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see also U.S.S.G. § 2K2.1 cmt. n.2 (2007); 18 U.S.C. §§ 922(g),

(n).

We took a similar approach in United States v. Laureano-

Velez, 424 F.3d 38 (1st Cir. 2005). There, we rejected the

defendant's argument that possession of a "grandfathered," pre-ban

weapon could not form the basis of a conviction under 18 U.S.C. §

924(c) for possession of a firearm in furtherance of a drug

offense. Instead, following the course laid by Ray, we concluded

that the grandfather clause created an exception "only with respect

to the separate crime of simple possession of such weapons under §

922(v)(2)." Id. at 41 (citing Ray, 411 F.3d at 905-06; Vega, 392

F.3d at 1282-83). We follow a similar course here. We find no

conflict between the lapse of the statutory assault-weapon ban and

the imposition of a higher offense level for use of such a weapon

by anyone in a class of "prohibited persons."6

2. Prohibited person

Alternatively, Marceau argues that he is not a

"prohibited person" within the meaning of U.S.S.G. §

2K2.1(a)(4)(B)(ii)(I). The Guidelines define "prohibited person"

as any person described in 18 U.S.C. § 922(g) or 922(n). U.S.S.G.

§ 2K2.1 cmt. n.3 (2007). The district court found that Marceau fit

6
We note that Congress has enacted several laws criminalizing the
possession of otherwise legal weapons, depending on the status of
the individual defendant. See, e.g., 18 U.S.C. § 922(g)(1-9)
(listing various groups of individuals for whom possession of any
firearm is illegal).

-9-
within § 922(g)(3), which bars firearm possession by a person "who

is an unlawful user of . . . any controlled substance." We agree.

In order to avoid unconstitutional vagueness, courts have

held that the critical term “unlawful user” requires a “temporal

nexus between the gun possession and regular drug use.” United

States v. Edwards, 540 F.3d 1156, 1162 (10th Cir. 2008), cert.

denied, U.S. , 2009 WL 56607 (Jan. 12, 2009). Refined

further, an “unlawful user” is one who engages in “regular use over

a long period of time proximate to or contemporaneous with the

possession of the firearm.” United States v. McCowan, 469 F.3d

386, 392 n.4 (5th Cir. 2006).

The district court was presented with ample evidence to

support its finding that Marceau was a “prohibited person.” For

example, the PSR noted that Marceau explained that even after his

stay at a drug treatment facility, he was unable to remain drug-

free, and that the MMS robbery was the first step in a plan to sell

the stolen firearms to get money for drugs. In addition, an FBI

agent testified that Tamiso told him that Marceau had smoked

marijuana daily in the days before the robbery, stopping only when

he exhausted his supply. Finally, the record shows that Vermont

officials recognized Marceau’s name from two marijuana-related

arrests –- one before and one after the instant robbery.

Marceau makes three arguments in response to this record

evidence. First, he states that the record did not establish

-10-
regular drug use after he completed the treatment program. The

record includes, however, his admissions that he was unable to

remain drug-free after his treatment and that he stole the weapons

to raise money to buy drugs.

Next, Marceau argues that the two arrests -- the first

for illegal alcohol consumption during which he was found in

possession of marijuana, and the other for possession of marijuana

and scales -– should be discounted because neither instance

resulted in a probation revocation or positive urinalysis. At

most, he claims, this evidence creates an inference of possession,

and not use. The district court was free to rely upon Marceau's

marijuana possession, in combination with the other evidence, to

draw an inference of use. See e.g., United States v. Mack, 343

F.3d 929, 933-34 (8th Cir. 2003) (evidence of defendant's

possession of small, "user quantity" of marijuana, where arresting

officer smelled marijuana and where defendant had previously been

in a dispute over marijuana, is sufficient to support conviction

for unlawful use).

Finally, the district court was not required to reject

the FBI agent’s testimony as hearsay, as urged by Marceau, because

the Rules of Evidence do not apply to sentencing hearings; a

district court may consider any relevant evidence so long as the

evidence "'has sufficient indicia of reliability to support its

probable accuracy.'" United States v. Green, 426 F.3d 64, 66 (1st

-11-
Cir. 2005)(quoting U.S.S.G. § 6A1.3(a)). Whether any particular

evidence is sufficiently reliable is within the broad discretion of

the district court. Id. We detect no abuse of that discretion

here.

Based on the foregoing, we affirm the district court’s

finding that Marceau was a “prohibited person” within the meaning

of U.S.S.G. § 2K2.1(a)(4)(B)(ii)(I), and therefore the eight-level

enhancement under section 2K2.1(4) was properly applied to him.

B. Enhancement for firearms trafficking

Marceau next argues that the district court incorrectly

applied the four-level enhancement for firearms trafficking,

pursuant to U.S.S.G. § 2K2.1(b)(5). We find no error.

As relevant here, the enhancement applies if Marceau

"transported, transferred, or otherwise disposed of two
or more firearms to another individual . . . and . . .
knew or had reason to believe that such conduct would
result in the transport, transfer, or disposal of a
firearm to an individual whose possession or receipt of
the firearm would be unlawful; or who intended to use
or dispose of the firearm unlawfully."

U.S.S.G. § 2K2.1 cmt. n.13 (2007).

The PSR notes that Marceau admitted giving four of the

stolen firearms that he took to Vermont to an individual he would

not identify. This easily satisfies the "transport, transfer, or

disposal" prong of the Guideline. Thus, it is not surprising that

Marceau targets only the second part of the enhancement, arguing

that there was no evidence that the individuals to whom he

-12-
transferred the stolen guns were themselves "prohibited persons,"

or that Marceau knew or had reason to believe they intended to use

the guns unlawfully.

The district court acknowledged the lack of direct

evidence of Marceau's knowledge of the recipients' intent.

Instead, the court focused on Marceau's numerous, uncontested pre-

robbery statements evincing an intent to steal the firearms, bring

them to Vermont, remove the serial numbers and exchange the guns

for money to buy drugs. The district court also noted that

Marceau's known actions all precisely tracked his stated intent,

and found that Marceau probably obliterated the serial numbers from

the guns that he transferred to the individual he would not name.

From there, the court took into consideration our observation in

United States v. Ortiz, 64 F.3d 18, 22 (1st Cir. 1995), that "the

serial number is obliterated from a gun so that it cannot be traced

by law enforcement. The act is thus done in anticipation that the

gun will be used in criminal activity," and concluded that Marceau

trafficked the weapons within the Guideline's meaning.

The government need only prove by a preponderance of the

evidence that Marceau is subject to the trafficking enhancement.

United States v. Cruz-Rodriguez, 541 F.3d 19, 31 n.8 (1st Cir.

2008). Moreover, the government is not required to prove that

Marceau had specific knowledge of any specific felonious plans on

the part of the stolen weapons' recipients. United States v.

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Molloy, 324 F.3d 35, 39 (1st Cir. 2003). A sentencing court is

entitled to rely on circumstantial evidence, United States v.

Sepulveda, 15 F.3d 1161, 1202 (1st Cir. 1993), and draw plausible

inferences therefrom, United States v. Ofray-Campos, 534 F.3d 1, 39

(1st Cir.), cert. denied, U.S. , 129 S. Ct. 588 (2008).

Such evidence may include Marceau's pre- and post-robbery

statements. Molloy, 324 F.3d at 41. While Marceau tries to

disclaim his statements of intent as "mere braggadocio," the fact

that he actually followed through on the specific theft, spirited

the stolen weapons to Vermont and transferred four of them provides

ample reason to reject his version.

Here, given the combination of Marceau’s pre-robbery

statements and his post-robbery actions, there was no error in the

district court’s application of the trafficking enhancement.

C. Enhancement for weapon with obliterated serial number

Marceau's challenge to the four-level enhancement for

possessing a firearm with an obliterated serial number is limited

to his claim that the Sentencing Commission acted beyond its

authority when it increased the enhancement from two to four levels

via adoption of Amendment 691. Unlike his argument with respect to

the expired weapons ban: that there was no authority for a

sentence enhancement for conduct no longer illegal, here Marceau

claims that the Amendment was adopted in violation of procedures

controlling the Commission's rule-making authority. We disagree.

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 We review the legality of a Guidelines provision de novo.

United States v. Ramos-Paulino, 488 F.3d 459, 463 (1st Cir. 2007).

Marceau bases his argument on a portion of the Commission's

enabling legislation, which provides that "[t]he Commission

periodically shall review and revise, in consideration of comments

and data coming to its attention, the guidelines promulgated

pursuant to the provisions of this section." 28 U.S.C. § 994(o).

Marceau claims that the adoption of the amendment was arbitrary

because the Commission's original published reason for the

amendment was "the difficulty in tracing firearms with altered or

obliterated serial numbers," yet the adopted amendment's reasoning

also mentions "an increase in the market" for such weapons.

Marceau argues that the final reliance on two reasons, rather than

on only the original reason, renders the enhancement illegal. He

provides no legal support for this assertion, however. The

proposed Guideline amendment was published; comments were received

from, among others, prosecutors and defenders; Congress interposed

no objection. We find no violation of section 994(o).

D. Reasonableness

Marceau's final argument is that the disparity between

his ten-year sentence and Tamiso's eighteen-month sentence makes

his sentence unreasonable. Our analysis ordinarily involves an

examination of both the procedural aspects of sentencing and the

substance of the sentence. United States v. Politano, 522 F.3d 69,

-15-
72 (1st Cir.), cert. denied, U.S. , 129 S. Ct. 133 (2008)

(citing Gall v. United States, U.S. , , 128 S. Ct. 586,

597 (2007)). Our first task is to determine whether the district

court made any procedural errors "'such as failing to calculate (or

improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.] §

3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence --

including an explanation for any deviation from the Guidelines

range.'" Id. (quoting Gall, 128 S. Ct. at 597) (alteration in

original).

Where, as we have found here, the district court has

committed no such procedural error,7 we then review the

"substantive reasonableness of the sentence imposed and review the

sentence for abuse of discretion." Id. (citing United States v.

Martin, 520 F.3d 87, 92-93 (1st. Cir. 2008)). Under Gall, we

afford the district court wide discretion in sentencing. "[A]fter

the court has calculated the [Guideline Sentencing Range],

7
We also note that the district court explicitly detailed its
consideration of the factors enumerated in § 3553(a), referencing
the harm caused to MMS's owner, its insurance company, and the
community. The court also considered the support Marceau received
from his family, as well as his past criminal history and drug use.
Given the nature of the crime and Marceau's intentions to parlay
the gun theft into money for drugs, the court reasonably concluded
that Marceau was using "violence to create a possibility of more
violence."

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'sentencing becomes a judgment call, and a variant sentence may be

constructed based on a complex of factors whose interplay and

precise weight cannot even be precisely described.'" Id. at 73

(quoting Martin, 520 F.3d at 92). Ultimately, "'[T]he lynchpin of

a reasonable sentence is a plausible sentencing rationale and a

defensible overall result.'" Id. (quoting Martin, 520 F.3d at 96).

With respect to the disparity between the two sentences,

§ 3553(a)(6) calls upon sentencing judges to "consider the need to

avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct."

Although this section is primarily aimed at national disparities,

rather than those between co-defendants, Martin, 520 F.3d at 94, a

district court may consider differences and similarities between

co-defendants at sentencing. United States v. Vazquez-Rivera, 470

F.3d 443, 449 (1st Cir. 2006). While “a defendant is not entitled

to a lighter sentence merely because his co-defendants received

lighter sentences, . . . concerns could arise if two identically

situated defendants received different sentences from the same

judge." United States v. Cirilo-Munoz, 504 F.3d 106, 142 (1st Cir.

2007) (Lynch, J., dissenting) (internal citations and quotation

marks omitted).

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 Here, the district court confronted the disparity head-

on, noting "significant differences" between Tamiso and Marceau.8

In the context of the Guideline calculation, the court noted that

Marceau trafficked the weapons, possessed a firearm with an

obliterated serial number, had a higher criminal history category,

and was a "prohibited person" due to his drug use. The court also

considered that after the robbery, Tamiso had demonstrated remorse

beyond that shown by Marceau, by apologizing personally and

publicly to the victim, commencing restitution payments before they

were ordered, and cooperating with the prosecution. In light of

these differences between the defendants, we have little difficulty

finding that the district court properly exercised its "informed

discretion," Martin, 520 F.3d at 98, while offering a "plausible

rationale and reach[ing] a defensible result." Id.

For the reasons set forth herein, Marceau's sentence is

affirmed.

8
The court's comparison took place during Tamiso's sentencing,
approximately one month after Marceau's.

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