United States Court of Appeals
For the First Circuit
No. 01-1129
UNITED STATES,
Appellee,
v.
DAVID MOLLOY,
Defendant, Appellant.
No. 01-2700
UNITED STATES,
Appellee,
v.
JASON ZAWADZKI,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lipez, Circuit Judge,
Coffin and Stahl, Senior Circuit Judges.
Aziz Safar for appellant Molloy.
Mark L. Stevens for appellant Zawadzki.
John T. McNeil, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
March 31, 2003
LIPEZ, Circuit Judge. In this appeal we confront the
narrow question of whether the district court clearly erred in
imposing a four-level sentencing enhancement for two defendants
pursuant to section 2K2.1(b)(5) of the United States Sentencing
Guidelines (the "Guidelines"). This provision requires courts to
increase a defendant's base offense level by four points if the
defendant "possessed or transferred any firearm or ammunition with
knowledge, intent, or reason to believe that it would be used or
possessed in connection with another felony offense." The items at
issue are two live, high-explosive M-67 military fragmentation hand
grenades that were stolen from a United States military facility
and delivered to defendant Jason Zawadzki.
Zawadzki and co-defendant David Molloy were apprehended
by federal law enforcement officials after attempting to sell the
hand grenades to a government informant. Both subsequently pled
guilty to one count of possession of unregistered destructive
devices and one count of transferring unregistered destructive
devices. Zawadzki, who at the time was serving a state sentence of
home confinement, also pled guilty to a third count of felon-in-
possession of firearms and ammunition. For the reasons that
follow, we conclude that the district court's decision to impose
the four-level enhancement for both defendants is well grounded in
the factual record and the relevant case law. Accordingly, we
reject the appellants' claims and affirm the decision below.
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I.
In December 1999, Zawadzki arranged to obtain two M-67
hand grenades from David Joseph, a convicted felon who had earlier
been deported to Canada. Joseph instructed his girlfriend to
deliver the hand grenades to Zawadzki, who was confined to his home
and required to wear an electronic monitoring device under the
terms of his sentence for a prior state felony conviction. As part
of his sentence, Zawadzki was also required to attend Alcoholics
Anonymous meetings at the Essex County House of Correction Farm
program. At one meeting, Zawadzki offered to sell the hand
grenades to another convicted felon named David Santiago (a.k.a.
"Tucky") whom the defendant knew to be a member of a street gang in
Lawrence, Massachusetts, called the Outlaws.
After Tucky declined to purchase the grenades, Zawadzki
contacted Molloy to request his assistance in finding a buyer.
Molloy informed Zawadzki that he knew a member of the "Latin
Gangsta Disciples" street gang named Luis Colon (a.k.a. "Slot") who
would potentially be interested in purchasing the grenades for up
to $1,000. The Disciples were declared enemies of the Outlaws who
trafficked drugs and stolen weapons in North Lawrence. Molloy's
knowledge of Slot's involvement with the Disciples stemmed from a
several-month friendship between the two, during which time Molloy
assisted Slot in selling a 9 mm handgun to a friend of Molloy's
named "LaPoint." Molloy was also aware that Slot frequently
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socialized with Victor Laboy (a.k.a. "Papito Bosero"), a known
leader of the Disciples, and that Slot had been shot by Leslie
Carabello, a member of the Outlaws. Unbeknownst to Molloy,
however, Slot had recently become a cooperating witness for the
Massachusetts State Police.
On January 23, 2000, Molloy approached Slot at a party in
Lawrence and offered to sell him the two hand grenades. Molloy
appeared anxious to unload the grenades, and attempted to
accelerate the pace of negotiations by informing Slot that if he
could not commit to purchasing the hand grenades quickly, Molloy
would instead sell them to Tucky, whom both parties knew to be
involved with the rival Outlaws. Slot left the party and
telephoned Massachusetts State Trooper Frank Hughes, who instructed
Slot to make the purchase the next day. On January 24, 2000, Slot
contacted Molloy and, in a telephone conversation that was recorded
by law enforcement agents, elicited from Molloy that the hand
grenades belonged to a third party and that Molloy would need to
retrieve them before the sale. During the conversation Molloy
agreed to sell the grenades for $1200 -- $700 due at the time of
purchase, and $500 to be paid once Slot verified the authenticity
of the grenades. Slot agreed to meet Molloy at a location near
Molloy's residence later that evening to complete the transaction.
After the phone conversation, the police provided Slot
with $700 in marked bills and equipped him with a wire. That
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evening, after several follow-up phone conversations, Slot drove to
the agreed location, which turned out to be Zawadzki's residence.
Molloy obtained the grenades from Zawadzki and gave them to Slot in
exchange for the initial $700 payment. On January 25, after law
enforcement officials confirmed that the hand grenades were "live"
and authentic, Slot met with Molloy and paid him the outstanding
balance of $500. The next day, Molloy approached Slot and offered
to sell him other stolen weapons, including a pump-action shotgun
and two handguns.
Between January 27 and February 1, Slot and Molloy had
several conversations monitored by law enforcement agents to
negotiate the price of the weapons and to make arrangements for the
exchange. These recorded conversations, coupled with the earlier
recorded discussions regarding the hand grenades, are the main
subject matter of the dispute. The conversations reveal that Slot,
prior to his purchase of the hand grenades, invented a fictitious
third-party buyer for whom he was supposedly purchasing the
weapons. Slot portrayed this fictitious buyer as a hostile
individual with substantial knowledge of hand grenades, ostensibly
to convince Molloy that the buyer would react negatively if Molloy
attempted to sell him fake grenades. In one January 24 telephone
conversation, Slot remarked that the fictitious buyer "don't want
to get stiffed for that bullshit cuz he already got stiffed once,"
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and represented that "this guy wants them you know . . . . He
collects them shits I guess."
On the basis of these conversations and the recovered
hand grenades, the police obtained a search warrant for Zawadzki's
residence. While executing the warrant, the police recovered a
pump-action shotgun, two handguns, and $200 of the cash payment
that Slot made to Molloy. Molloy was subsequently arrested, and
the two co-defendants eventually pled guilty to the aforementioned
charges.
II.
To impose the four-level sentencing enhancement for
Molloy and Zawadzki, the court was required to find, by a
preponderance of the evidence, that the recorded conversations
revealed that the co-defendants had "knowledge, intent, or reason
to believe" that the hand grenades sold to Slot would "be used or
possessed in connection with another felony offense." U.S.S.G.
§ 2K2.1(b)(5). The court concluded that the requirements of
section 2K2.1(b)(5) were satisfied as to Molloy: "The tenor of the
transcripts and all the circumstances convince the Court by a fair
preponderance of the evidence that Mr. Molloy thought these
grenades were going to be used in a felony." The court similarly
imposed a four-level enhancement for Zawadzki, concluding that
"there is significant evidence to warrant the inference that Mr.
Zawadzki . . . in fact had reason to believe that the grenades
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would be used or possessed in connection with another felony
offense; and further, I find by a fair preponderance of the
evidence that he did so believe."
Zawadzki and Molloy advance separate theories of error in
the district court's sentencing determinations. The government
concedes that Zawadzki had no knowledge of the fictitious third-
party buyer invented by Slot; Zawadzki, in turn, argues that the
government's proof that the defendants sold the grenades to a known
gang member was by itself insufficient to trigger a four-level
enhancement under U.S.S.G. § 2K2.1(b)(5). Molloy, on the other
hand, insists that he had "reason to believe" that Slot would
convey the grenades to an ex-marine who did not intend to use them
in a felony, but wished to purchase them for his personal
collection. We examine each of these arguments in turn, mindful of
the deference that we accord a district court's factual findings:
"If a party assigns error to a factual finding made at sentencing,
we review the finding for clear error. In doing so, we ask only
whether the court clearly erred in finding that the government
proved the disputed fact by a preponderance of the evidence."
United States v. Powell, 50 F.3d 94, 102-03 (1st Cir. 1995)
(internal citation omitted).
1. Zawadzki's claim of error
At Zawadzki's sentencing hearing, the government conceded
that its "best evidence" supporting the court's application of
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U.S.S.G. § 2K2.1(b)(5) was "that Mr. Zawadzki was selling to a gang
member in the Lawrence area with knowledge of what was going on in
the Lawrence area but no specific knowledge of any specific
felony." Yet as Molloy and Zawadzki concede, we have previously
interpreted section 2K2.1(b)(5) as requiring a four-level
enhancement even where the defendant had no knowledge of a specific
felony involving the transferred weapons:
While appellant argues that the section
requires knowledge of some specific offense,
the use of the word "another" as the sole
modifier of "felony offense" does not command
such a narrow reading . . . . The First
Circuit has looked at U.S.S.G. § 2K2.1(b)(5)
and interpreted it to require an enhancement
where the defendant was not aware of a
specific felony offense to be committed with
transferred guns.
United States v. Cutler, 36 F.3d 406, 408 (4th Cir. 1994) (citing
United States v. Brewster, 1 F.3d 51, 54 (1st Cir. 1993)); see also
United States v. Nunez, 146 F.3d 36, 40 (1st Cir. 1998).
However, Zawadzki insists that Slot's purported status as
a gang member, without more, does not permit a four-level
enhancement under U.S.S.G. § 2K2.1(b)(5) as a matter of law.
Superficially, he finds some support for this proposition in our
prior cases. In Nunez, for instance, we upheld the district
court's imposition of a four-level enhancement where the buyer
approached the defendant and explicitly told him that he needed
some pipe bombs "to blow up" a rival gang. Nunez, 146 F.3d at 37.
Similarly, we determined in Brewster that the court was justified
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in levying a four-level enhancement where the defendant sold an
undercover police officer a handgun, and, within the hour, sold the
same officer a small amount of crack cocaine. Brewster, 1 F.3d at
52. There we concluded that "appellant sold the gun with reason to
believe that his customer planned to use it in connection with drug
trafficking, and a sufficient nexus exist[ed] between the weapon
and the drug trafficking to warrant imposition of the enhancement."
Id. at 54. Here, only Slot's history of gang activity connects the
sale of the grenades to the commission of a future felony.
Significantly, however, Nunez and Brewster do not purport
to establish minimum evidentiary requirements for the application
of section 2K2.1(b)(5). As the government persuasively argues, the
simple fact that Zawadzki and Molloy were selling lethal explosive
devices with almost no non-felonious uses distinguishes this case
from much of the authority cited by appellants. Indeed, the
Supreme Court observed in another context that "one would hardly be
surprised to learn that possession of hand grenades is not an
innocent act. They are highly dangerous offensive weapons."
United States v. Freed, 401 U.S. 601, 609 (1971) (footnote
omitted). Accordingly, one could hardly fault the district court
for its common sense conclusion that individuals who transfer
"offensive" and "dangerous" M-67 hand grenades to a known gang
member have reason to believe that the weapons will be used in a
subsequent felony. See United States v. Sklar, 920 F.2d 107, 112
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(1st Cir. 1990) ("The law is not so struthious as to compel a
judge, in making factbound determinations under the sentencing
guidelines, to divorce himself or herself from common sense or to
ignore what is perfectly obvious.").
The defendants point to nothing in the record that
counters the validity of this inference. In fact, Zawadzki's
counsel conceded at oral argument that the defendant attempted to
peddle the grenades to members of two rival street gangs in the
Lawrence area with a history of violent interaction. The
defendants' efforts to solicit buyers with a predilection for
violent behavior further vindicate the court's U.S.S.G.
§ 2K2.1(b)(5) determination. In the end, we find no clear error in
the judge's reliance on circumstantial evidence and common sense to
support the four-level enhancement.1
1
Zawadzki briefly challenges his sentence on due process
grounds, arguing that the Supreme Court's decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000), requires the government to "allege
in the indictment and prove to the jury each fact that supports an
enhancement under the sentencing guidelines." According to
Zawadzki, the district court violated the rule of Apprendi by
exposing him to a greater statutory maximum sentence based on
factual findings (made pursuant to U.S.S.G. § 2K2.1(b)(5)) that
were not submitted to a jury. Frankly, in the absence of any
elaboration of this argument, we fail to understand how the
district court's application of the four-level enhancement exposed
Zawadzki to a greater statutory maximum sentence.
In any event, the defendant concedes that on numerous
occasions we have rejected Apprendi challenges in cases like this
one, "where the sentencing enhancements do not result in a sentence
in excess of the statutory maximum." See United States v. Lopez-
Lopez, 282 F.3d 1, 22-23 (1st Cir. 2002); United States v.
Robinson, 241 F.3d 115, 121-22 (1st Cir. 2001); United States v.
Caba, 241 F.3d 98, 101 (1st Cir. 2001). Cognizant of this binding
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2. Molloy's claim of error
Molloy asserts that "[l]eading up to the hand grenades'
sale, [Slot] continually maintained that the third party purchaser
was merely a collector who was an ex-marine . . . . His
representation to the appellant was that as a collector, the
purchaser dismantled them." At sentencing the judge expressly
rejected this argument:
I base the finding on this fictitious
character that the undercover informant Slot
made up. It just strains credulity in these
circumstances, where these grenades are being
passed about among street gangs, that Mr.
Molloy in good faith thought some sort of out-
of-state collector was going to get the
grenades.
On appeal, Molloy attempts to resuscitate the "ex-marine"
theory by pointing to two recorded conversations in which Slot
indicated to Molloy that the fictitious buyer was an ex-marine. The
record indicates that Slot did not even convey the fictitious
buyer's identity until he picked up the hand grenades. Molloy then
seemed apathetic about the prospect of selling the grenades to a
collector as opposed to a gang member, exclaiming "big deal" before
changing the subject of the conversation. The second conversation,
which occurred on January 28 after the completion of the hand
grenade sale, is more illuminating:
adverse precedent, Zawadzki expressly raises the Apprendi issue
before us only to preserve it for possible Supreme Court review.
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Molloy: I want to see that dude use the grenades . .
. That would be shit to see someone throw
the grenades . . . Boom
Slot: Yeah but . . . you know what I'm saying he
just grabs them . . . That's what he does he
got four of them dog . . . All different
kinds
Molloy: Are the other ones he has different than
those ones?
Slot: Yeah he got two of those same and he got
some other ones are different they look like
the fuckin they got like carbine in the
middle in shit you know what I'm saying
Molloy: That dude will he buy pipe bombs and shit
Slot: Nigga yo this motherfucker be making his own
shit yo
Molloy: Oh he make pipe bombs and stuff
Slot: He makes yo, yo whatever pipes . . . You
know what I'm saying they're ready to blow
shit up . . . This guy's a freakin used to
be an ex-marine
Molloy: He's one of those fucking army nuts
Slot: He's a fucking nut dude . . . I'm afraid to
be around that motherfucker, dog
As a threshold matter, Molloy argues that because this
conversation occurred after the sale of the hand grenades, "the
comments on use were inadequate indicators of the appellant's state
of mind at the time of the sale." We disagree. As the government
observes, "the enhancement focuses on the defendant's state of mind
at the time he possessed or transferred the grenades." See Nunez,
146 F.3d at 40; United States v. Gilmore, 60 F.3d 392, 394 (7th Cir.
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1995). To the extent that Molloy's state of mind at the time of
sale was ambiguous, his post-sale comments are a useful and relevant
indicator of whether, prior to the sale, he had reason to believe
that Slot would convey the grenades to a collector who never
intended to use or possess them in connection with another felony
offense. Cf. James v. Marshall, No. 02-1352, slip op. at 11-12 (1st
Cir. March 14, 2003) (where defendant's alleged invocation of
Miranda rights is ambiguous, court may consider defendant's post-
invocation statements to discern his state of mind at the time of
the initial request). The district court is entitled to scrutinize
the record in its totality to determine whether a four-level
enhancement under U.S.S.G. § 2K2.1(b)(5) is warranted. See United
States v. James, 172 F.3d 588, 594 (8th Cir. 1999). Hence, we find
no clear error in the district court's consideration of Molloy's
post-sale statements during sentencing.
Those statements, along with numerous others in the
record, provide ample support for the district court's conclusion
that Molloy had reason to believe that the grenades would be used
in connection with another felony offense. Slot did not portray the
fictitious ex-marine as a benign hobbyist with an academic interest
in military artifacts, but as "a fucking nut" who manufactured pipe
bombs and other weapons and was "ready to blow shit up." Indeed,
Slot's characterization of the ex-marine seemed to persuade Molloy
that the third-party buyer might detonate the weapons, prompting
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Molloy to exclaim that he "want[ed] to see that dude use the
grenades." In the end, the violent persona of the fictitious ex-
marine and Slot's dogged persistence in ensuring that the hand
grenades were live and authentic provided Molloy with a reason to
believe that the grenades would be used in a subsequent felony --
a belief evidenced by Molloy's documented excitement at the
possibility that the grenades would be detonated.
Molloy also asserts for the first time on appeal that
because Slot portrayed the fictitious purchaser as the owner of
numerous explosive devices, the buyer's procurement of two
additional grenades could not have been "causally or logically"
related to a future felony offense. We review for plain error. As
the government recognizes, Molloy is essentially arguing that
U.S.S.G. § 2K2.1(b)(5) "is inapplicable unless the evidence
establishes that the defendant has reason to believe that the 'other
felony offense' would not be committed absent the transfer." We
agree with the government that this position is indefensible in
light of our prior decisions construing the phrase "in connection
with" broadly: "Although there must be a causal or logical relation
or sequence between the possession and the related offense . . . we
will find that a firearm has been used in connection with an offense
if the possession has the potential to aid or facilitate the other
crime." United States v. Peterson, 233 F.3d 101, 111 (1st Cir.
2000) (internal quotation marks omitted). Molloy's excited comments
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to Slot reveal that he had reason to believe that the M-67 grenades
would be detonated in the commission of a subsequent felony
notwithstanding the ex-marine's existing collection of grenades.
Hence there was no error, let alone plain error, in the district
court's implicit determination that sufficient causation existed to
warrant the four-level enhancement for Molloy.
III.
For the foregoing reasons, we decline to overturn the
district court's imposition of four-level sentencing enhancements
for both defendants. The decision below is affirmed.
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