United States v. Nunez

United States Court of Appeals
For the First Circuit

No. 14-2297

UNITED STATES OF AMERICA,

Appellee,

v.

JOWENKY NUÑEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

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

Before

Howard, Chief Judge,
Selya and Thompson, Circuit Judges.

William S. Maddox on brief for appellant.
Seth R. Aframe, Assistant United States Attorney, District of
New Hampshire, and Emily Gray Rice, United States Attorney,
District of New Hampshire, on brief for appellee.

October 19, 2016
 SELYA, Circuit Judge. Defendant-appellant Jowenky Nuñez

challenges the sentence imposed following his guilty plea to a

charge of conspiracy to possess with intent to distribute 28 grams

or more of cocaine base (crack cocaine). See 21 U.S.C.

§§ 841(a)(1), 846. He raises three discrete claims of error,

implicating a sentencing enhancement for his leadership role in

the offense, a sentencing enhancement for his possession of a

firearm during and in furtherance of a drug-trafficking crime, and

the substantive reasonableness of his sentence. Finding these

claims of error unpersuasive, we affirm.

I. BACKGROUND

As this appeal follows a guilty plea, we draw the facts

from the change-of-plea colloquy, the plea agreement, the

uncontested portions of the second revised presentence

investigation report (PSI Report), and the transcript of the two-

day disposition hearing. See United States v. Almonte-Nuñez, 771

F.3d 84, 86 (1st Cir. 2014).

The appellant was arrested on February 2, 2012, and

charged with conspiracy to distribute and possess with intent to

distribute 28 grams or more of cocaine base, as well as possession

of a firearm in furtherance of a drug-trafficking offense. These

charges arose out of a long and thorough investigation, spearheaded

by the Drug Enforcement Administration, into drug-trafficking

activities in Bangor, Maine. The appellant originally maintained

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his innocence but — on January 18, 2013 — he pleaded guilty to the

conspiracy charge.1

At a disposition hearing spread over two separate days,

the appellant identified three purported inaccuracies in the PSI

Report. First, he contested the finding that he served as a

manager of the enterprise and, consequently, he objected to the

proposed aggravating role enhancement. Second, he contested the

finding that he carried a firearm with him to make drug deliveries

and, consequently, objected to the proposed two-level enhancement

for possession of a firearm in the course of the crime of

conviction. Third, he contested the accuracy of the PSI Report's

drug-quantity calculation.

The district court acknowledged and discussed each

objection. In rejecting the appellant's first objection, the court

reviewed testimony from several coconspirators and pointed

specifically to uncontradicted testimony from Dawlin Cabrera (the

ringleader of the conspiracy) to the effect that the appellant was

the person who kept him updated on sales and receipts.

Turning to the weapons enhancement, the court agreed

with the appellant that the government had not sufficiently tied

the gun mentioned in the PSI Report to the appellant and the crime

of conviction. However, the court accepted the government's

1Pursuant to the plea agreement, the firearms charge was
dismissed at the time of sentencing.

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proffer of the appellant's own testimony during a coconspirator's

trial, indicating that he (the appellant) possessed a different

gun while conducting the conspiracy's business. This newly

introduced evidence, the court concluded, justified the weapons

enhancement.

The appellant enjoyed more success with his final

plaint. The district court accepted his (somewhat reduced) drug-

quantity calculation.

When all was said and done, the court set the appellant's

base offense level at 32, see USSG §2D1.1(c)(4); applied the two-

level weapons enhancement, see id. §2D1.1(b)(1); applied the

three-level role-in-the-offense enhancement, see id. §3B1.1(b);

and subtracted three levels for acceptance of responsibility, see

id. §3E1.1. These findings yielded a total offense level of 34.

The appellant's past record placed him in Criminal History Category

(CHC) III. As a result, the appellant's guideline sentencing range

(GSR) was 188 to 235 months.

Taking into account the appellant's substantial

assistance to the government and the government's corresponding

recommendation of a below-the-range 120-month sentence, the court

departed downward, see id. §5K1.1, and imposed a 97-month

incarcerative sentence. In formulating this term of immurement,

the court noted its consideration of the appellant's criminal

history, character, and the nature and circumstances of the

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conspiracy. The court also noted the appellant's specific role in

the offense, the need to protect the public, and its desire to

avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a).

This timely appeal ensued.2

II. ANALYSIS

Appellate review of federal criminal sentences is for

abuse of discretion. See Gall v. United States, 552 U.S. 38, 51

(2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008).

The process is bifurcated. A reviewing court must first determine

whether the sentence imposed is procedurally reasonable (that is,

free from non-harmless procedural error) and then must determine

whether it is substantively reasonable. See Gall, 552 U.S. at 51.

It follows that "[t]he touchstone of abuse of discretion

review in federal sentencing is reasonableness." United States v.

Vargas-Dávila, 649 F.3d 129, 130 (1st Cir. 2011). That review "is

characterized by a frank recognition of the substantial discretion

vested in a sentencing court." United States v. Flores-Machicote,

706 F.3d 16, 20 (1st Cir. 2013). Within this framework, we review

a district court's factual findings for clear error, and its

2
Although the appellant was indicted, convicted, and sentenced
in the District of Maine, the government is represented on appeal
— as it was below — by prosecutors from the District of New
Hampshire. The reason for this odd configuration need not concern
us.

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interpretation and application of the guidelines de novo. See

United States v. Walker, 665 F.3d 212, 232 (1st Cir. 2011).

"Reasonableness is itself an inherently fluid concept."

United States v. Bermúdez-Meléndez, 827 F.3d 160, 166 (1st Cir.

2016). There is not a single reasonable sentence "but, rather, a

universe of reasonable sentencing outcomes." United States v.

Clogston, 662 F.3d 588, 592 (1st Cir. 2011).

The federal sentencing guidelines are merely advisory.

See United States v. Booker, 543 U.S. 220, 245 (2005). Still, the

GSR remains the conventional starting point for constructing a

federal sentence. See Martin, 520 F.3d at 91. The sentencing

court is obliged to calculate the GSR correctly, and a party may

challenge an incorrect calculation even where, as here, the court

levies a sentence below the bottom of the range. See United States

v. Gobbi, 471 F.3d 302, 313 n.7 (1st Cir. 2006).

With these principles in mind, we turn first to the

appellant's claim that the sentencing court erred when it applied

a three-level enhancement for his leadership role in the

conspiracy. See USSG §3B1.1(b). Such an enhancement requires

dual findings. First, the court must find that the underlying

criminal activity involved five or more participants or was

otherwise extensive. See id. Second, the court must find that

the defendant, when committing the offense, managed,

superintended, or exercised hegemony over at least one other

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participant. See, e.g., United States v. Voccola, 99 F.3d 37, 44

(1st Cir. 1996). In this instance, the appellant does not contest

that the conspiracy involved five or more participants; instead,

he claims that he simply followed orders and attacks the district

court's finding that he exercised managerial responsibilities with

respect to other participants in the enterprise.

This attack is easily repulsed. It ignores the testimony

of several coconspirators, which confirmed the appellant's

exercise of operating control over various individuals at

different times during the life of the conspiracy. For example,

Cabrera testified to the effect that the appellant was responsible

for keeping him updated on the financial aspects of the conspiracy;

Alfarabick Mally testified that the appellant was "in charge when

Cabrera was not in Bangor"; Robert Jordan testified that the

appellant was known as "the General" and was the drug ring's de

facto "head of operations"; and Keith Bo Lewis testified that the

appellant was "in charge of the crew."

Criminal cabals do not normally have formal

organizational charts, and a finding of managerial control can

supportably be premised on how the enterprise operated in practice.

See United States v. Cruz, 120 F.3d 1, 3-4 (1st Cir. 1997) (en

banc). Here, the record is replete with evidence that, either

directly or by fair inference, solidly supports the district

court's conclusion that the appellant was not "out on the street"

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but, instead, was responsible for overseeing retail sellers and

trusted by Cabrera to exert control over other players in the

enterprise. No more was exigible to ground the role-in-the-offense

enhancement. See United States v. Cruz-Rodríguez, 541 F.3d 19, 33

(1st Cir. 2008); see also United States v. Savoie, 985 F.2d 612,

616 (1st Cir. 1993) (recognizing that a defendant need not be the

head of a conspiracy in order to warrant managerial role-in-the-

offense enhancement).

Next, the appellant argues that the district court

committed clear error in imposing the two-level weapons

enhancement. The applicable sentencing guideline authorizes such

an enhancement "[i]f a dangerous weapon (including a firearm) was

possessed" during the course of a drug-trafficking crime. USSG

§2D1.1(b)(1). The government has the initial burden of

establishing that the defendant possessed a weapon during the

commission of the offense. See United States v. Anderson, 452

F.3d 87, 90 (1st Cir. 2006). Once that burden has been satisfied,

the enhancement attaches unless the defendant can show that it was

clearly improbable that the weapon was connected to the crime.

See USSG §2D1.1, cmt. n.11; see also Gobbi, 471 F.3d at 313.

Here, the appellant is aiming at the wrong target. His

argument focuses on a firearm purchased around August of 2011 by

a coconspirator, Jennifer Holmes. But though the government

initially sought the weapons enhancement based on this firearm,

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the district court rejected the government's proffer. The Holmes

firearm is, therefore, irrelevant to the enhancement actually

imposed.

The district court predicated the weapons enhancement on

a different firearm: a firearm owned by yet another coconspirator,

Eddie Cogswell. The court cited the appellant's own testimony (in

a different case), in which he admitted that he had carried the

Cogswell firearm at the place where the conspiracy's inventory of

drugs was stashed.3 The appellant's brief on appeal offers no

exculpatory explanation for this testimony.

Accepting the excerpt from the appellant's testimony,

the district court found that the appellant possessed the Cogswell

firearm on the premises where the conspiracy's stash of crack

cocaine was stored and, thus, used the firearm in the course of

the conspiracy. To buttress this finding, the court recounted the

testimony of two other coconspirators, Keith Bo Lewis and

Alfarabick Mally. In the court's words, the evidence "put a gun

in [the appellant's] hand at the house where there was truly an

enormous amount of crack cocaine."

3 When confronted with the Cogswell firearm at the earlier
trial, the appellant testified: "I know that gun. That gun's
always been in the house. . . . and I've had it in my hand." The
appellant added that he knew the weapon "[b]ecause I've had that
gun for a long time. I've always had it there [at the stash
house]. . . . I've always carried it there." The clear implication
of this testimony, unrebutted by the record, is that the firearm
was kept at the stash house to safeguard the drug inventory.

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 We have held that, absent some innocent explanation,

mere possession of a firearm during and in the course of a drug-

trafficking conspiracy may justify a weapons enhancement. See

United States v. Ruiz, 905 F.2d 499, 507 (1st Cir. 1990); see also

USSG §2D1.1(b)(1). Where, as here, the appellant has neither

articulated an innocent explanation for his possession of the gun

nor identified any evidence indicating the improbability of a link

between the gun and the crime of conviction, evidence of possession

at the stash house was all that was required. See Gobbi, 471 F.3d

at 313. Thus, we discern no error — clear or otherwise — in the

district court's imposition of the enhancement.

Before leaving the weapons enhancement, a further

comment is in order. In resisting this enhancement, the appellant

dwells at some length on his putative withdrawal from the

conspiracy. His argument, however, is directed at the facts

surrounding his use of the Holmes weapon: the incidents involving

the Cogswell weapon occurred before the appellant's putative

withdrawal from the conspiracy. Consequently, we need not address

the withdrawal question.4

4In a single sentence in his brief, the appellant suggests
that his putative withdrawal from the conspiracy may have affected
the district court's drug-quantity calculation. Any such
suggestion is doubly defaulted. For one thing, the district court
used the very drug-quantity calculation proposed at sentencing by
the appellant, and the appellant is bound by that calculation.
See United States v. Teeter, 257 F.3d 14, 28 (1st Cir. 2001). For
another thing, the appellant's brief is bereft of developed

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 The appellant's challenge to the substantive

reasonableness of his sentence need not detain us. Since the

appellant did not advance this claim of error below, there is some

question as to whether our review is for abuse of discretion or

for plain error. See United States v. Ruiz-Huertas, 792 F.3d 223,

228 & n.4 (1st Cir.), cert. denied, 136 S. Ct. 258 (2015). Here,

however, we need not answer this question: assuming, favorably to

the appellant, that our review is for abuse of discretion, the

claim of error nonetheless fails.

A substantively reasonable sentence ought to reflect

both a plausible sentencing rationale and a defensible result.

See Martin, 520 F.3d at 96. That benchmark was achieved in this

instance.

The district court's sentencing rationale was perfectly

plausible. The court carefully considered the sentencing factors

identified by Congress. See 18 U.S.C. § 3553(a); Martin, 520 F.3d

at 92. In particular, it stressed the pivotal role that the

appellant played in saturating the Bangor area with a flood of

crack cocaine. These activities, in the court's view, were

argumentation concerning any drug-quantity issue and, thus, any
such claim of error has been abandoned. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (recognizing that "[i]t is
not enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel's work").

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directly correlated with the extreme wreckage left behind in the

community. See Flores-Machicote, 706 F.3d at 22-23.

The court also considered the appellant's personal

characteristics. In particular, the court noted that the appellant

was not himself a crack cocaine user and that his involvement in

the drug-trafficking enterprise was motivated purely by greed, not

by his own addiction. See United States v. Deppe, 509 F.3d 54, 62

(1st Cir. 2007).

So, too, the sentence imposed was plainly within the

universe of reasonable sentences. To begin, the sentence fell

substantially below the nadir of the GSR. As we have explained,

"[i]t is a rare below-the-range sentence that will prove vulnerable

to a defendant's claim of substantive unreasonableness." United

States v. King, 741 F.3d 305, 310 (1st Cir. 2014). This is not so

rare a case.

The appellant's rejoinder is that his sentence was

disproportionate to the sentence imposed on Cabrera (the

ringleader of the conspiracy). Cabrera initially received a 120-

month sentence, which — as predicted by the district court — was

shortened to 97 months following palliative amendments to USSG

§2D1.1(c).

This amounts to a claim of sentencing disparity, which

we approach mindful that a salient consideration in the fashioning

of a criminal sentence is to "avoid unwarranted sentence

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disparities among defendants with similar records who have been

found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). The

appellant cannot pass through this screen. Merely pointing to a

coconspirator's sentence, without more, does not prove the

existence of an impermissible sentencing disparity. See United

States v. Rivera-López, 736 F.3d 633, 636 (1st Cir. 2013); United

States v. Dávila-González, 595 F.3d 42, 50 (1st Cir. 2010). After

all, "a defendant is not entitled to a lighter sentence merely

because his co-defendants received lighter sentences." United

States v. Gomez-Pabon, 911 F.2d 847, 862 (1st Cir. 1990).

In all events, the appellant's proposed comparator did

not receive a lighter sentence. And even though Cabrera occupied

a higher place in the hierarchy of the conspiracy, there was an

offsetting circumstance: the appellant (who was in CHC III) had a

significant record of past criminality, whereas Cabrera (who was

in CHC I) did not. In short, the appellant is comparing plums to

pomegranates: there is a salient distinction between the appellant

and his proposed comparator, and that distinction — the appellant's

more extensive criminal record — defeats any claim that the two

individuals were similarly situated. See Flores-Machicote, 706

F.3d at 24-25.

That ends this aspect of the matter. We conclude,

without serious question, that the appellant's below-the-range

sentence was substantively reasonable.

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III. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

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