Filed: Jun. 15, 2020
Latest Update: Jun. 15, 2020
Summary: United States Court of Appeals For the First Circuit No. 19-1395 UNITED STATES OF AMERICA, Appellee, v. JOSÉ ILARRAZA, a/k/a KAE-KAE, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District Judge] Before Howard, Chief Judge, Selya and Kayatta, Circuit Judges. Lenore Glaser, with whom Law Office of Lenore Glaser was on brief, for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Andrew E. Lelling
Summary: United States Court of Appeals For the First Circuit No. 19-1395 UNITED STATES OF AMERICA, Appellee, v. JOSÉ ILARRAZA, a/k/a KAE-KAE, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District Judge] Before Howard, Chief Judge, Selya and Kayatta, Circuit Judges. Lenore Glaser, with whom Law Office of Lenore Glaser was on brief, for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Andrew E. Lelling,..
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United States Court of Appeals
For the First Circuit
No. 19-1395
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ ILARRAZA,
a/k/a KAE-KAE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Kayatta, Circuit Judges.
Lenore Glaser, with whom Law Office of Lenore Glaser was on
brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
June 15, 2020
SELYA, Circuit Judge. It is apodictic that the guideline
sentencing range (GSR) is the starting point for fashioning a
sentence in a federal criminal case. See Gall v. United States,
552 U.S. 38, 49 (2007); United States v. Martin,
520 F.3d 87, 91
(1st Cir. 2008). But the GSR does not spring full-blown from the
sentencing judge's brow. Rather, it is the product of a series of
subsidiary determinations that the judge must make, many of which
affect either the defendant's total offense level (TOL) or his
criminal history category (CHC).
In this appeal, defendant-appellant José Ilarraza
assigns error to a number of such subsidiary determinations. He
says that these errors, singly and in combination, artificially
boosted his GSR and, thus, improperly inflated his sentence.
Concluding, as we do, that the appellant's asseverational array is
all meringue and no pie, we affirm the challenged sentence.
I. BACKGROUND
Because this sentencing appeal follows a guilty plea, we
gather the relevant facts from the change-of-plea colloquy, the
undisputed portions of the presentence investigation report (PSI
Report), and the transcript of the disposition hearing. See United
States v. Narváez-Soto,
773 F.3d 282, 284 (1st Cir. 2014). In the
fall of 2017, federal authorities learned from a cooperating
witness (CW-1), incarcerated in a Massachusetts prison, that the
appellant (a fellow inmate) had offered to help him purchase
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firearms to ship to the Dominican Republic. According to the
information received, the appellant had told CW-1 to contact an
individual named Bryan Torres-Almanzar (Torres), who was selling
two firearms for $700 each and would be awaiting his call. The
authorities enlisted a second cooperator (CW-2) to set up a
controlled buy with Torres on CW-1's behalf.
In a series of recorded telephone conversations between
September 10 and September 13, the appellant and Torres discussed
their scheme to sell firearms to the two CWs. As relevant here,
the appellant told Torres that he wanted to sell "the shittiest
stuff" they had and that he had quoted CW-1 a price of around $700
or $800 per firearm. In the course of this conversation, the
appellant made clear that the trafficked firearms were "going
straight to the Dominican Republic." On another call, the
appellant admonished Torres to "scratch everything off" the
firearms that they were selling.
This planning came to fruition on September 13, when
Torres and an associate, Eric Valentín, rendezvoused with CW-2 and
sold him a semiautomatic handgun. Before the meeting, CW-2
deposited $700 into the appellant's canteen account as payment.
The handgun had an obliterated serial number (as did each of the
ten other firearms subsequently sold to CW-2).
That night, the appellant told Torres that CW-1 was
concerned that CW-2 had only received one firearm instead of two.
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The next day, Torres assured the appellant that he was about to
sell CW-2 the second firearm. Within the hour, Torres and Valentín
met CW-2 and sold him another semiautomatic handgun.
In the weeks that followed, CW-2 purchased firearms to
CW-1's behoof from Torres and Valentín on four occasions. During
this interval, the authorities recorded other telephone calls in
which the appellant and Torres discussed some of the sales. On
September 15 — with the appellant present — CW-1 called Torres and
discussed the sale of three more firearms to CW-2. Four days
later, Torres and Valentín sold CW-2 three semiautomatic pistols.
In a later discussion about the possible sale of two
assault rifles, Torres expressed doubt that CW-2 could pay for
them. The appellant reassured him that payment would not be a
problem, explaining that the money was coming "from Santo Domingo."
Notwithstanding this discussion, the next firearm that CW-2 bought
(on September 28) was another pistol.
The appellant called Torres for the last time on October
2. In that conversation, Torres related that CW-2 wanted to
purchase three more guns. Two days later, Torres and Valentín
sold CW-2 three semiautomatic pistols. A final sale occurred on
October 19, at which time CW-2 purchased another semiautomatic
pistol and an assault rifle.
In due course, a federal grand jury sitting in the
District of Massachusetts charged the appellant with conspiring to
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deal in firearms without a license and dealing in firearms without
a license (on a theory of aiding and abetting). See 18 U.S.C.
§§ 371, 922(a)(1)(A); see also
id. § 2. The indictment charged
that the conspiracy continued until October 19, 2017 (the date of
the final arms sale to CW-2). After initially maintaining his
innocence, the appellant reversed his field and entered a straight
guilty plea to both counts of the indictment.
The probation office prepared the PSI Report, which
included a recommended calculation of the appellant's GSR. This
calculation began by fixing the appellant's base offense level
(BOL) at 12. See USSG §2K2.1(a)(7). From that plinth, the PSI
Report then recommended a quartet of four-level enhancements
because the offenses of conviction involved eleven firearms, see
USSG §2K2.1(b)(1)(B), which had obliterated serial numbers, see
USSG §2K2.1(b)(4)(B); the offenses involved trafficking in
firearms, see USSG §2K2.1(b)(5); and the appellant had been
complicit in transferring firearms with knowledge that they would
be sent out of the country, see USSG §2K2.1(b)(6)(A). The PSI
Report recommended a further two-level enhancement for the
appellant's role as an organizer of the conspiracy, see USSG
§3B1.1(c), and a three-level reduction for acceptance of
responsibility, see USSG §3E1.1. These calculations yielded a TOL
of 27.
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Turning to the other side of the sentencing grid, the
PSI Report chronicled a host of juvenile adjudications and one
adult conviction, all accruing during the four years preceding the
indictment. Pertinently, it assigned two criminal history points,
see USSG §4A1.2(d)(2)(A), to certain of the juvenile adjudications
based on the probation officer's review of records of the
Massachusetts Department of Youth Services (DYS), which indicated
that each such adjudication had resulted in the appellant spending
at least sixty days in custody. In all, the PSI Report computed
the appellant's criminal history score at 13 and placed him in CHC
VI.
Both the government and the appellant objected to
subsidiary guideline determinations in the PSI Report. The
government submitted that the appellant's BOL should be increased
by two levels because he was a "prohibited person" under USSG
§2K2.1(a)(6)(A) due to his Massachusetts conviction on October 17,
2017, for resisting arrest (two days before the end of the charged
conspiracy). For his part, the appellant raised a gallimaufry of
objections both to the offense-level enhancements and to his
criminal history score. In a revised PSI Report, the probation
officer sustained the government's objection, raised the
appellant's BOL to 14, and raised his TOL to 29. In all other
respects, the probation officer reaffirmed the earlier
recommendations.
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With these amended calculations in hand, the revised PSI
Report tentatively set the appellant's GSR at 151 to 188 months.
This spread, though, was trumped by the combined statutory maximum
for the counts of conviction — 120 months — which became the
appellant's GSR. See United States v. Breton,
740 F.3d 1, 22 (1st
Cir. 2014).
Before the district court, the appellant renewed his
earlier objections to the probation officer's subsidiary
determinations. The district court overruled all of these
objections and adopted the revised PSI Report's calculations.
After entertaining arguments of counsel and the appellant's
allocution, the court imposed a downwardly variant 50-month term
of immurement. This timely appeal ensued.
II. ANALYSIS
Appellate review of claims of sentencing error involves
a two-step pavane. See United States v. Flores-Machicote,
706
F.3d 16, 20 (1st Cir. 2013);
Martin, 520 F.3d at 92. We first
examine any claims of procedural error. See
Flores-Machicote, 706
F.3d at 20;
Martin, 520 F.3d at 92. If the sentence clears these
procedural hurdles, we then consider any claim that questions its
substantive reasonableness. See
Flores-Machicote, 706 F.3d at 20;
Martin, 520 F.3d at 92. Because the appellant advances only
assignments of procedural error, we do not address the substantive
reasonableness of his downwardly variant sentence.
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The starting point for sentencing is the calculation of
the GSR. See
Gall, 552 U.S. at 49;
Martin, 520 F.3d at 91.
Typically, a material miscalculation of the GSR constitutes "a
significant procedural error," which requires resentencing.
United States v. Alphas,
785 F.3d 775, 779 (1st Cir. 2015). This
rule of thumb holds true even when — as in this case — the
sentencing court has imposed a below-the-range sentence. See
id.
at 779-80.
In this instance, the appellant tries to persuade us
that the district court committed several errors that inflated the
calculation of his GSR. Inasmuch as he raised these claims of
procedural error below, our review is for abuse of discretion.
See United States v. Soto-Soto,
855 F.3d 445, 448 (1st Cir. 2017).
We caution, however, that this standard of review is not
monolithic: under its aegis, we assay the district court's
findings of fact for clear error and its interpretation and
application of the sentencing guidelines de novo. See
Flores-Machicote, 706 F.3d at 20. In applying the abuse-of-
discretion standard here, we remain mindful that the government
bears the burden of demonstrating the appropriateness of
sentencing enhancements by a preponderance of the evidence. See
United States v. Cates,
897 F.3d 349, 354 (1st Cir. 2018).
- 8 -
A.
We begin with the appellant's argument that the district
court erred in finding that he was a "prohibited person" at the
time of the offense. USSG §2K2.1(a)(6)(A). Since his argument
centers on the meaning and application of the operative guideline
provision, our review is de novo. See
Flores-Machicote, 706 F.3d
at 20.
The applicable guideline provision assigns a default BOL
of 12 for most firearms offenses. See USSG §2K2.1(a)(7). But it
ratchets up the BOL by two levels "if the defendant . . . was a
prohibited person at the time the defendant committed the instant
offense." USSG §2K2.1(a)(6)(A). The Sentencing Commission's
commentary, in turn, identifies a "prohibited person" as "any
person described in 18 U.S.C. § 922(g) or § 922(n)."
Id. cmt.
n.3. The former statute, among other things, refers to a person
"who has been convicted in any court of[] a crime punishable by
imprisonment for a term exceeding one year." 18 U.S.C.
§ 922(g)(1). Read together, these provisions trigger an enhanced
BOL (14) for a defendant with a prior conviction for a crime
punishable by more than one year in prison at the time he committed
a firearms offense.
The appellant does not contest that his predicate
conviction was for an offense that carries a maximum term of
imprisonment of more than one year. See Mass. Gen. Laws ch. 268,
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§ 32B(d). Because the conspiracy to traffic firearms was ongoing
at the time of his predicate conviction — the appellant pleaded
guilty to an indictment that described the conspiracy as lasting
until October 19, 2017 — it appears as if his commission of the
conspiracy offense transpired while he was a prohibited person.
After all, the appellant's guilty plea constituted an admission
that he was a member of the conspiracy until October 19 — two days
after the occurrence of his predicate conviction. See United
States v. Jones,
778 F.3d 375, 386 (1st Cir. 2015); United States
v. Hernández,
541 F.3d 422, 425 n.1 (1st Cir. 2008); see also
United States v. Grant,
114 F.3d 323, 329 (1st Cir. 1997) ("When
a criminal defendant pleads guilty, he admits not only that he
committed the factual predicate underlying his conviction, but
also 'that he committed the crime charged against him.'" (quoting
United States v. Broce,
488 U.S. 563, 570 (1989))).
In an effort to sap the strength of this reasoning, the
appellant contends that he was not a prohibited person at the time
of the instant offense because his predicate conviction postdated
his active involvement in the charged conspiracy. This contention
elevates hope over reason. It is settled that once an individual
joins a conspiracy, his membership is presumed to continue through
the end of the conspiracy unless and until he affirmatively shows
that his membership was terminated at an earlier juncture either
by his expulsion or by his withdrawal. See, e.g., United States
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v. Mangual-Santiago,
562 F.3d 411, 422-23 (1st Cir. 2009); United
States v. Piper,
298 F.3d 47, 53 (1st Cir. 2002). Given the
continuing nature of a conspiracy offense, an individual "who has
joined a conspiracy continues to violate the law" throughout the
duration of his membership. Smith v. United States,
568 U.S. 106,
111 (2013). Seen in this light, we think it plain that section
2K2.1(a)(6)(A)'s reference to "the time the defendant committed
the instant offense" means the entire period of a defendant's
membership in a charged conspiracy, not merely the moments when he
undertakes actions to further the goals of the enterprise.
We add, moreover, that the appellant's focus on the
timing of his active involvement is at odds with the requirements
for withdrawal from a conspiracy. A conspirator who seeks to
withdraw from the enterprise must do more than merely cease active
participation or shun his coconspirators. See United States v.
Mehanna,
735 F.3d 32, 57 (1st Cir. 2013). Instead, he "'must act
affirmatively either to defeat or disavow the purposes of the
conspiracy,' such as by confessing to the authorities or informing
his coconspirators that he has forsaken the conspiracy and its
goals."
Id. (quoting Piper, 298 F.3d at 53). Because a period of
inactivity on the part of a conspirator, without more, does not
constitute withdrawal from the conspiracy, it would defy logic to
exclude that period from the duration of his conspiracy offense
for the purpose of section 2K2.1(a)(6)(A).
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To cinch the matter, guideline provisions should be
construed in harmony with each other whenever the context permits.
See, e.g., United States v. López,
957 F.3d 302, 308-09 (1st Cir.
2020);
Hernández, 541 F.3d at 424-25. The appellant's contention
offends this principle: it conflicts with our case law
interpreting an analogous guideline provision. USSG §4A1.1(d)
calls for the addition of two criminal history points "if the
defendant committed the instant offense while under any criminal
justice sentence." We have held that this provision applies to a
defendant convicted of a conspiracy offense if he was serving a
criminal justice sentence at any point during his membership in
the conspiracy, regardless of whether that sentence overlapped
with his participation in specific acts in furtherance of the
conspiracy. See United States v. González-Colón,
582 F.3d 124,
128 n.4 (1st Cir. 2009);
Hernández, 541 F.3d at 424-25. We see no
reason to embrace a different understanding of when a defendant
commits a conspiracy offense in applying section 2K2.1(a)(6)(A).
To sum up, we hold that the phrase "the time the
defendant committed the instant offense" in section 2K2.1(a)(6)(A)
refers, in the context of a conspiracy offense, to the entirety of
a defendant's membership in the conspiracy. It follows that —
absent either withdrawal or expulsion from the conspiracy — this
provision demands a BOL of 14 for a defendant convicted of a
firearms conspiracy offense if he became a prohibited person at
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any point before the conspiracy terminated. Because the appellant
became a prohibited person on October 17 — two days before the end
of the conspiracy — the district court did not err in elevating
his BOL by two levels under section 2K2.1(a)(6)(A).1
There is one loose end. The parties joust over whether
the October 19 arms sale was reasonably foreseeable to the
appellant and, thus, was relevant conduct under USSG
§1B1.3(a)(1)(B). This squabble need not detain us. The two-level
increase attaches here because the appellant was a member of the
charged conspiracy until October 19, not because the October 19
sale comprised relevant conduct. Cf.
Hernández, 541 F.3d at 425
& n.1 (holding that determination of period of conspiracy offense
for purpose of section 4A1.1(d) did not require findings of
specific acts attributable to conspirator who admitted period of
conspiracy as part of guilty plea).
B.
The appellant goes on to challenge the district court's
finding that the offenses of conviction involved eleven firearms.2
1The government contends that even if the district court
erroneously increased the appellant's BOL by two levels, such an
error was harmless because the resulting GSR would still exceed
the combined statutory maximum for the counts of conviction.
Because we find no error in the court's application of section
2K2.1(a)(6)(A), we need not inspect this contention.
2 In this case, we need not determine whether the sale of all
eleven firearms fell within the scope of the appellant's relevant
conduct. The same four-level enhancement would apply as long as
- 13 -
See USSG §2K2.1(b)(1)(B). While he concedes that he helped
coordinate the sale of the first two firearms, he challenges the
finding that he was implicated in the subsequent sales (especially
those that occurred after his final conversation with Torres).
Because the challenged finding is a factual finding, our review is
for clear error. See United States v. Goodson,
920 F.3d 1209,
1211 (8th Cir. 2019).
We set the stage. When determining the number of
firearms involved in an offense, we consider all relevant conduct
attributable to the defendant. See United States v. Damon,
595
F.3d 395, 401 (1st Cir. 2010). For jointly undertaken criminal
activity, such as a conspiracy, a defendant's relevant conduct
includes all reasonably foreseeable acts and omissions of
coventurers within the scope of the conspiracy and undertaken in
furtherance of it. See USSG §1B1.3(a)(1)(B). Here, the
enhancement was warranted if the appellant's relevant conduct
encompassed the unlawful sale of at least eight firearms. See
supra note 2.
As said, the appellant does not challenge the district
court's finding that he was responsible for the sale of the first
two firearms. In addition, the record amply supports a finding
that the September 19 sale of three firearms by his confederates
the offenses of conviction involved at least eight firearms. See
USSG §2K2.1(b)(1)(B).
- 14 -
was reasonably foreseeable to him. After all, the appellant was
present when CW-1 discussed this sale with Torres, and he knew at
that time that CW-2 already had acquired some firearms.
Nor was this the last link in the foreseeability chain.
The record makes manifest that Torres told the appellant on October
2 that CW-2 wished to purchase three additional firearms. The
sale itself transpired two days later. Adding these three firearms
to those previously enumerated, we conclude that the district court
did not clearly err in finding that the offenses of conviction
involved at least eight firearms.
C.
We pivot now to the district court's application of the
exportation enhancement. See USSG §2K2.1(b)(6)(A). The
guidelines prescribe a four-level enhancement where the defendant
"possessed or transferred any firearm or ammunition with
knowledge, intent, or reason to believe that it would be
transported out of the United States."
Id.
The appellant admits that CW-1 stated that he wanted to
buy firearms to send to the Dominican Republic. He protests,
though, that there was no evidence that he either believed or
should have believed this statement. The district court rejected
this plaint and determined that the appellant's case fit within
the contours of the exportation enhancement. Because this
determination draws its essence from a factual finding concerning
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the appellant's state of mind, our review is for clear error. See
United States v. Torres-Velazquez,
480 F.3d 100, 103 (1st Cir.
2007) (reviewing for clear error finding that defendant knew
laundered funds were related to drug trade).
Closely read, the record belies the appellant's
protestations. When discussing the first sale, the appellant told
Torres that CW-1 wanted to purchase firearms to send to the
Dominican Republic. Moreover, during a later call on September
23, the appellant told Torres that he should not worry about
payment for assault rifles because CW-1 was getting money from
Santo Domingo (the capital of the Dominican Republic). Words may
inform deeds, and the appellant offers no explanation as to why he
would falsely relate to a confederate that CW-1 was shipping
firearms to, and receiving money from, the Dominican Republic.
Statements between coconspirators, made during and in furtherance
of the conspiracy, are often deemed sufficiently reliable to
warrant consideration by the factfinder, see
Mehanna, 735 F.3d at
44 (describing defendant's statements to coconspirators during
course of conspiracy as "highly probative" of his intent), and the
sentencing court reasonably could have inferred from the
appellant's statements to Torres that he believed the firearms
were destined for foreign shores.
The appellant has a fallback position. He suggests that
the exportation enhancement is inapplicable in this case for two
- 16 -
additional reasons: because the trafficked firearms did not end
up in the Dominican Republic and because his role in the conspiracy
was too far removed from the planned exportation of the weapons.
We think not.
We need not tarry. Nothing in the language of the
relevant guideline provision, USSG §2K2.1(b)(6)(A), mandates that,
as a condition precedent to the enhancement, the trafficked
firearms actually must cross an international border. Nor does
the guideline require, as a condition precedent to the enhancement,
that a defendant must have played a direct, hands-on role in
exporting trafficked firearms. In short, neither of the
appellant's proffered reasons for setting aside the sentencing
court's state-of-mind finding throws shade on that finding.
D.
Battling on, the appellant contests the four-level
enhancement for engaging in firearms trafficking. See USSG
§2K2.1(b)(5). He posits that the trafficking enhancement applies
only to a defendant with actual knowledge that the recipient of
the transferred firearms may not lawfully possess them. Building
on this porous foundation, he claims that CW-2 was virtually a
stranger and, therefore, he (the appellant) lacked the requisite
knowledge.
This claim is easily toppled. The guideline commentary
provides a two-part definition of trafficking. See
id. cmt.
- 17 -
n.13(A). For one thing, the defendant — as relevant here — must
have "transported, transferred, or otherwise disposed of two or
more firearms to another individual."
Id. cmt. n.13(A)(i). For
another thing, the defendant must have "kn[own] or had reason to
believe that such conduct would result in the transport, transfer,
or disposal of a firearm" either to a person "whose possession or
receipt of the firearm would be unlawful" or to a person "who
intended to use or dispose of the firearm unlawfully."
Id. cmt.
n.13(A)(ii).
The appellant does not dispute that his conduct
satisfied the first of these elements. Consequently, the lens of
our inquiry focuses on the second element. To satisfy that
element, the government was required to show that the appellant
knew (or had reason to believe) that CW-2 could not lawfully
possess the firearms or that he intended to use or dispose of them
unlawfully.
In addressing this guideline provision, the appellant
mounts a thaumaturgical exercise in sleight of hand. Before us,
he emphasizes that he did not know that CW-2 was prohibited from
possessing firearms. But this is the reddest of red herrings:
the second element of the trafficking definition contains two
disjunctive prongs, and it is the unlawful use or disposition prong
under which the government urged the enhancement.
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It is true that the sentencing court did not make a
specific finding when it overruled the appellant's objection to
this enhancement. But when the basis for a sentencing court's
finding is sufficiently clear from context, the absence of an
explicit explanation for the finding is of no consequence. See
United States v. Carbajal-Váldez,
874 F.3d 778, 783 (1st Cir. 2017)
(explaining that reviewing court may uphold enhancement despite
absence of explicit subsidiary findings when "the sentencing
record, taken as a whole, reliably shows that the relevant factual
questions were 'implicitly resolved' by the sentencing court"
(quoting United States v. Van,
87 F.3d 1, 3 (1st Cir. 1996) (per
curiam))). That is the case here: we think it pellucid that the
sentencing court adopted the government's view that the appellant
had abundant reason to believe that CW-2 intended to dispose of
the firearms unlawfully. We review this factual finding for clear
error, see United States v. Juarez,
626 F.3d 246, 251-52 (5th Cir.
2010), and we discern none. We explain briefly.
To satisfy the unlawful use or disposition prong, the
government does not need to prove that the defendant knew "of any
specific felonious plans on the part" of the recipient of the
firearms. See United States v. Marceau,
554 F.3d 24, 32 (1st Cir.
2009). Nor must the government prove the defendant's knowledge of
the recipient's intent by direct evidence. See
id. Put simply,
a sentencing court may rely on circumstantial evidence and the
- 19 -
plausible inferences therefrom to find that a defendant knew or
had reason to believe that the recipient planned to use or dispose
of the firearms in an unlawful manner. See United States v.
Taylor,
845 F.3d 458, 460-61 (1st Cir. 2017);
Marceau, 554 F.3d at
32.
Let us be perfectly clear. The bare fact that a person
seeks to purchase firearms unlawfully is insufficient, in and of
itself, to put the seller on notice that the buyer has plans to
use or dispose of the firearms in connection with criminal
activity. See United States v. Moody,
915 F.3d 425, 430 (7th Cir.
2019). Here, however, the evidence of the appellant's knowledge
of the CWs' criminal plans extended well beyond the unlawfulness
of the purchase. As we already have explained, the district court
supportably found that the appellant believed that the CWs intended
to send the firearms to the Dominican Republic — and the appellant
had no basis for thinking that either CW had a license to export
firearms. Cf.
Taylor, 845 F.3d at 461 (finding no plain error in
application of trafficking enhancement when defendant transferred
sawed-off shotgun to individual who planned to resell it and "there
was no indication that [the individual] would be the unusual
firearms dealer who could legally own, much less legally resell,
a sawed-off shotgun").
To make the cheese more binding, the appellant was aware
that the CWs had expressed interest in purchasing a slew of
- 20 -
handguns and at least two assault rifles over the course of only
a few weeks. The number and type of firearms that the CWs sought
to buy over a short period of time provided further reason for the
district court to doubt the appellant's claim that he did not
believe that the purchasers intended to use or dispose of the
firearms in connection with some nefarious activity. See id.;
Juarez, 626 F.3d at 252.
Last — but surely not least — the district court
reasonably could have concluded that the appellant took pains to
remind Torres to scratch the serial numbers off the firearms before
transferring them to CW-2. This reminder provides powerful (albeit
circumstantial) evidence that the appellant believed that the CWs
had felonious plans for the firearms because the obliteration of
a serial number is almost always "done in anticipation that the
gun will be used in criminal activity."
Marceau, 554 F.3d at 32
(quoting United States v. Ortiz,
64 F.3d 18, 22 (1st Cir. 1995)).
Especially given so telling a harbinger, the district court was
entitled to disregard the appellant's self-serving claim of
ignorance.
That ends this aspect of the matter. The appellant was
aware that the CWs wanted to purchase a significant number of
firearms, including assault rifles, with the stated intent of
exporting them to the Dominican Republic. Prior to the first of
the transactions, he instructed his coconspirator to remove the
- 21 -
serial numbers from the trafficked firearms. No more was needed
to inoculate the district court's finding that the appellant knew
or had reason to believe that CW-2 intended to dispose of the
firearms unlawfully against clear error review.
E.
Next, the appellant takes aim at the district court's
application of a two-level role-in-the-offense enhancement. By
its terms, the relevant guideline provision applies when "the
defendant was an organizer, leader, manager, or supervisor in any
criminal activity" involving up to four participants.3 USSG
§3B1.1(c); see United States v. Al-Rikabi,
606 F.3d 11, 14 (1st
Cir. 2010). The appellant argues that he was not an organizer
but, rather, acted only as a "matchmaker" and a "cheerleader."
We begin with the basics. Section 3B1.1(c)'s two-level
enhancement is warranted if the government satisfies two elements.
See
Al-Rikabi, 606 F.3d at 14. First, the record must show that
"the criminal activity involved at least two, but fewer than five,
complicit individuals (the defendant included)."
Id. Second, the
record must show that, "in committing the offense, the defendant
exercised control over, managed, organized, or superintended the
activities of at least one other participant."
Id. We review a
3 A more onerous enhancement may apply to a defendant who is
shown to be an organizer, leader, manager, or supervisor of a
criminal activity that comprised five or more participants or was
otherwise extensive. See USSG §3B1.1(a)-(b).
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district court's fact-bound determination of a defendant's role in
the offense for clear error. See United States v. Alicea,
205
F.3d 480, 485 (1st Cir. 2000).
In the case at hand, it is clear that the criminal
activity (the arms trafficking enterprise) involved three
complicit participants: the appellant, Torres, and Valentín.4 The
issue, then, is whether the record supports the district court's
determination that the appellant acted as an organizer. A
defendant acts as an organizer "if he coordinates others so as to
facilitate the commission of criminal activity." United States v.
Bedini,
861 F.3d 10, 21 (1st Cir. 2017) (quoting United States v.
Tejada-Beltran,
50 F.3d 105, 112 (1st Cir. 1995)). We have
recognized several indicia that the defendant plays an
organizational role, including substantial participation in the
planning of the offense, the recruitment of accomplices, and the
exercise of decisionmaking authority. See, e.g., id.; United
States v. Arbour,
559 F.3d 50, 55 (1st Cir. 2009); see also USSG
§3B1.1, cmt. n.4.
What is more, a defendant need not exercise complete
hegemony over the entire criminal enterprise in order to qualify
4 There is some suggestion in the revised PSI Report that the
enterprise also may have included "soldiers" who worked for Torres
and Valentín. But this point is largely undeveloped, and neither
party has argued that we should regard the criminal activity as
having more than three participants.
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as an organizer. See United States v. Ventura,
353 F.3d 84, 90
(1st Cir. 2003); cf. USSG §3B1.1, cmt. n.4 ("There can, of course,
be more than one person who qualifies as a leader or organizer of
a criminal association or conspiracy."). Indeed, a defendant's
direction of the activities of one other participant in connection
with one criminal transaction is enough to bestow "organizer"
status upon him. See United States v. García-Morales,
382 F.3d
12, 19-20 (1st Cir. 2004); United States v. Cruz,
120 F.3d 1, 4
(1st Cir. 1997) (en banc).
Against this backdrop, the district court (adopting a
recommendation contained in the revised PSI Report) found the
appellant to be an organizer within the purview of the guideline.
Where, as here, the sentencing court has not made particularized
findings as to the identity of the persons organized, the court of
appeals may mine the record in order to identify those persons.
See United States v. Zayas,
568 F.3d 43, 47 (1st Cir. 2009) (per
curiam); United States v. Ramos-Paulino,
488 F.3d 459, 463 (1st
Cir. 2007). In this case, that excavation reveals ample evidence
to support a conclusion that the appellant organized the activities
of Torres with respect to the initial arms sales to CW-2.5
5 To recapitulate, the appellant identified CW-1 as a
prospective buyer and offered up Torres as a willing seller. He
then helped arrange the sale of the first two firearms through
telephone conversations with Torres, during which conversations he
discussed what firearms to sell and how much to charge.
Importantly, the appellant gave Torres what reasonably could be
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To be sure, the appellant identifies some facts that
could be construed to indicate that Torres was running the show.
For example, Torres procured the firearms that were trafficked;
only he — not the appellant — had contact with Valentín and CW-2;
and he and/or Valentín apparently retained the proceeds from all
but the first arms sale. These facts, however, may instead reflect
the appellant's incarceration during the period when the criminal
enterprise was in motion. At bottom, then, a reasonable factfinder
could have viewed the appellant's role in one of two different
ways — either as an organizer of Torres's activities or simply as
a facilitator. This duality lights our path: "where there is
more than one plausible view of the circumstances, the sentencing
court's choice among supportable alternatives cannot be clearly
erroneous." United States v. Dunston,
851 F.3d 91, 101-02 (1st
Cir. 2017) (quoting United States v. Ruiz,
905 F.2d 499, 508 (1st
Cir. 1990)). So it is here.
To say more would be to trespass on the reader's
indulgence. Since the record plainly shows that there were at
least two culpable participants in the criminal activity (the
appellant and Torres) and since the district court had a reasonable
basis for inferring that the former organized the activities of
construed as directions concerning salient details of the sale.
Nothing makes this fact more evident than the appellant's
admission, when entering his guilty plea, that he told Torres "how
much money to charge" for the firearms.
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the latter, we detect no clear error in the district court's
application of the two-level enhancement. The district court
plausibly could view the sale of the first two firearms as the
consummation of the appellant's idea to sell firearms to CW-1 and
his recruitment and coordination of Torres in order to execute his
plan.
F.
This brings us to the appellant's final sortie: his
attack on the district court's computation of his criminal history
score. To begin, the sentencing guidelines assign two criminal
history points to a "juvenile sentence to confinement of at least
sixty days if the defendant was released from such confinement
within five years of his commencement of the instant offense."
USSG §4A1.2(d)(2)(A). Any other "juvenile sentence imposed within
five years of the defendant's commencement of the instant offense"
receives one criminal history point. USSG §4A1.2(d)(2)(B).
In the case at hand, the PSI Report initially recommended
that certain of the appellant's juvenile adjudications receive two
criminal history points because his DYS records showed that each
of them resulted in at least sixty custodial days.6 The appellant
objected to this recommendation, but the probation officer
6
The probation officer concluded that, in each instance, the
appellant was released from custody within five years of the
commencement of the charged conspiracy. The appellant has not
challenged this conclusion.
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rejected the appellant's importunings and reaffirmed the
recommendation in a revised PSI Report. Before the district court,
the appellant again objected. The district court overruled this
renewed objection and followed the revised PSI Report's lead.
The appellant argues that each of the disputed
adjudications should have carried only one criminal history point.
He says that his DYS records "are not clear as to the amount of
time in juvenile custody" and that "[t]here is no . . . proof of
which case or cases received sentence [sic] of more than sixty
days." He also says that "[h]e was placed in the legal custody of
[DYS], which does not necessarily mean physical custody or
detention."
This line of argument is fatally underdeveloped. As a
threshold matter, it is unclear whether the appellant means to
assert that his DYS records fail to show a separate sentence of at
least sixty days of confinement for each juvenile adjudication,
means to assert that he was sentenced to a form of DYS custody
that does not qualify as "confinement" under section
4A1.2(d)(2)(A), or means to advance a grab-bag theory based on
some combination of these two arguments. And although his attack
seems to involve a disagreement with the probation officer's
reading of his DYS history, the documents underlying that history
are not part of the record on appeal (and for that matter, do not
seem to have been made part of the record below). Consequently,
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there is no meaningful way in which we can assess the appellant's
assertion that the probation officer misinterpreted the time he
spent in custody.
The problem goes from bad to worse. The appellant's
attack takes aim at the scoring of four separate juvenile
adjudications, but he fails even to mention — let alone provide
any details about — any particular adjudication. And to the extent
that the appellant is endeavoring to argue that any or all of his
juvenile sentences resulted in a form of DYS custody that should
not qualify as "confinement," he does not point to even a scintilla
of supporting evidence. Nor does he identify any authority
defining these terms. On this meager record, we are simply unable
to determine what force, if any, the appellant's attack might have.
We have emphasized before — and today reiterate — that
parties must bear responsibility for developing their arguments on
appeal. See, e.g., United States v. Pinkham,
896 F.3d 133, 141
(1st Cir. 2018); United States v. Zannino,
895 F.2d 1, 17 (1st
Cir. 1990). To carry this modest burden, a party must do more
than merely "mention a possible argument in the most skeletal way,
leaving the court to do counsel's work, create the ossature for
the argument, and put flesh on its bones."
Zannino, 895 F.2d at
17. In this instance, the appellant has shirked this
responsibility: he has failed either to articulate his theory
about the scoring of his juvenile adjudications with so much as a
- 28 -
rudimentary degree of clarity or to amplify the factual and legal
basis for any other arguments on this issue that he purposes to
make. In light of these deficiencies, his claim that the district
court erred in calculating his criminal history score amounts to
little more than the frenzied brandishing of a cardboard sword.
We therefore treat this claim as waived. See
id. ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived.").
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the challenged sentence is
Affirmed.
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