USCA1 Opinion
November 22, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1573
UNITED STATES,
Appellee,
v.
JESUS M. ROMERO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Van L. Hayhow on brief for appellant.
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Edwin J. Gale, United States Attorney, and Zechariah Chafee,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. After purchasing multiple handguns in Rhode
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Island and delivering them to New York for illegal resale,
defendant-appellant Jesus M. Romero pled guilty to a twenty
count indictment charging him with nine counts of possession
of a firearm by a convicted felon in violation of 18 U.S.C.
922(g)(1), nine counts of making a false statement to affect
the purchase of firearms in violation of 18 U.S.C.
922(a)(6) and 924(a)(1)(B), and two counts of unlawful
transportation of firearms in interstate commerce, in
violation of 18 U.S.C. 922(a)(1)(A), 923(a), and
924(a)(1)(D). Romero appeals from the imposition of
sentence, claiming that the district court erred in adding a
four level enhancement to the base offense level, pursuant to
U.S.S.G. 2K2.1(b)(5),1 based on a finding by the court
that Romero knew or had reason to believe that the firearms
would be used at some time in the future in connection with
another felony offense.
I. BACKGROUND
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1. The guideline provides in relevant part:
If the defendant used or possessed 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 or possessed in
connection with another felony offense, increase by
four levels.
U.S.S.G. 2K2.1(b)(5) (Nov. 1992).
We take the relevant facts from the pre-sentence
investigation report (PSI) and the transcript of the
sentencing hearing. See, e.g., United States v. Connell, 960
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F.2d 191, 192-93 (1st Cir. 1992). On April 24, 1992, Romero
went to Continental Gun and Engraving (Continental) in
Cranston, Rhode Island and purchased ten .380 caliber
pistols. During the transaction, Romero filled out Bureau of
Alcohol, Tobacco and Firearms Form 4473 (ATF 4473), which is
required for all gun transactions with licensed gun dealers.
Romero answered "no" to the question on the ATF that asked
whether he had been previously convicted of a felony. In
fact, Romero had been convicted of larceny of a motor
vehicle, a Massachusetts felony, on June 17, 1991.
On May 1, 1992, Romero returned to Continental and
bought fourteen more pistols. These guns were ten .25
caliber pistols, three .380 caliber pistols, and one .22
caliber pistol. Romero again indicated on the ATF 4473 that
he had not been previously convicted of a felony. The Bureau
of Alcohol, Tobacco and Firearms (ATF) began investigating
Romero's activities after receiving its Notice of Multiple
Purchases from Continental on May 5, 1992.
On May 13, 1992, the New York City Police recovered one
of the guns that Romero had bought from Continental. The
police found the gun in the possession of a 17 year old male
during a drug raid in the Bronx.
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Between June 4, 1992 and August 28, 1992, Romero bought
six more handguns from Continental on six separate occasions.
In mid-October, Romero and a man named Luis F. Lugo attempted
to buy ten more handguns from Continental. This time,
however, Continental refused to sell so many guns at a single
time.
On November 6, 1992, ATF agents observed Romero,
accompanied by Lugo, buy ten .380 caliber handguns at D & C
Shooting Supplies in Warwick, Rhode Island. Again, Romero
filled out an ATF 4473 form in which he indicated that he had
not previously been convicted of a felony. ATF agents
followed Romero home and asked him to accompany them to ATF
headquarters in Providence. Romero voluntarily went to the
ATF headquarters. After receiving his Miranda warnings,
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Romero acknowledged that he had bought guns from Continental
the previous April and May. He stated that he got the money
for those guns from an individual named William Delgado of
New York City. Romero said that once he got the guns, he
drove to New York City and gave them to Delgado.
After defendant pled guilty on March 22, 1993, the PSI
was prepared.2 The base offense level (BOL) was established
at level 14, because the defendant was a "prohibited person"
within the meaning of U.S.S.G. 2K2.1(a)(6). A six level
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2. The November 1992 version of the Sentencing Guidelines
was used to determine Romero's guideline sentencing range.
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increase was made to the BOL, pursuant to 2K2.1(b)(1),
because 50 weapons were involved.3 The offense level was
adjusted upward another four levels, pursuant to
2K2.1(b)(2), because the defendant had reason to believe that
the firearms would be used or possessed in connection with
another felony offense. The defendant received a three level
downward adjustment for acceptance of responsibility. This
yielded a total offense level of 21. Since the defendant's
criminal history category was II, the guidelines sentencing
range was determined to be forty-one to fifty-one months.
At sentencing, Romero objected to two conclusions in the
PSI. First, Romero denied attempting to purchase ten
handguns from Continental in October. Romero maintained that
he should be held responsible only for the forty firearms
that he actually purchased. The government called as a
witness a clerk from the store who testified anent the
defendant's attempt to buy the guns. Defendant put on no
witnesses. The district court found as fact that Romero was
responsible for fifty firearms. Defendant does not appeal
this finding.
Romero also objected to the conclusion in the PSI that
the base offense level should be increased by four levels,
pursuant to U.S.S.G. 2K2.1(b)(5), because Romero
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3. The number of weapons included the forty weapons Romero
purchased, as well as the ten weapons he unsuccessfully
attempted to purchase from Continental in October.
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transferred the firearms to a person in New York City with
knowledge, intent or reason to believe that the guns would be
used or possessed in connection with another felony
offense.4 Defense counsel argued that the court should
accept Romero's statement in the PSI that he had been asked
by a man named Luis Lugo to assist him in buying handguns for
shop and business owners in New York who wanted to purchase
handguns for protection and did not wish to comply with New
York's "well-known" and "difficult" licensing procedures.5
Defense counsel further argued that if Romero had been "a
little bit smarter, a little bit more sophisticated," he
probably would have guessed that the guns he took to New York
would be used in a further crime, but that his client was
too naive to understand this risk.6
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4. Neither the defense nor the prosecution presented
evidence at the sentencing hearing specific to this issue.
Both counsel argued from the presentence report, which
included the government's version of the offense and a
statement by the defendant.
5. In his statement, Romero stated that Lugo "indicated" to
him "that he knew various store owners and other people who
ran offices and otherwise were business people in New York
that wanted to buy guns." Romero also stated that he was
"shocked to learn that one of the guns involved had been
recovered during a drug arrest in New York city" and never
would have entered into the arrangement if he had known Lugo
intended to sell the guns to drug dealers.
6. At the time of the offense, Romero was 21 years old. He
had completed eight years of education in Spanish-speaking
schools in Puerto Rico.
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The district court overruled defense counsel's objection
and found that Romero knew or had reason to believe that the
firearms he purchased and transported to New York would be
used at some time in the future in connection with another
felony offense. In support of this ruling, the court stated:
I've already indicated I can't think of any other
reason for having the firearms except to fire them
at some person. There may be some people in our
society who do not understand that when one
delivers 10 handguns to New York City that they
could be expected to be used in the perpetration of
a crime. But they are few and far between and the
Defendant is not one of them. He had to know that
there was no legitimate purpose here involved.
That the firearms would ultimately end up in the
possession of people who couldn't otherwise get
them, and that includes felons, and that itself is
a felony. So that it seems to me the Defendant had
every reason to believe that what he was doing was
wrong, and to know it. So I overrule that
objection.
The court adopted the findings and recommendations contained
in the PSI and sentenced the defendant to forty-one months
imprisonment, the bottom end of the applicable guideline
sentencing range.
II. DISCUSSION
On appeal, Romero argues that there was insufficient
support for the district court's finding that he knew or had
reason to believe that the guns would be used in a future
felony. We disagree.
An appellate tribunal "shall accept the findings of fact
of the district court unless they are clearly erroneous and
shall give due deference to the district court's application
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of the guidelines to the facts." 18 U.S.C. 3742(e) (1988).
We have interpreted this statute as requiring, in most
instances, that the court of appeals review a trial court's
application of a sentencing guideline to the facts only for
clear error.7 See, e.g., United States v. Mariano, 983 F.2d
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1150, 1158 (1st Cir. 1993); United States v. Ruiz, 905 F.2d
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499, 507 (1st Cir. 1990). In the instant case, the record
adequately supports the district court's factual finding that
the defendant must have understood that the weapons he
delivered to New York City would wind up in the hands of
criminals for use in future crimes. The defendant was
dealing with persons of unknown backgrounds who asked him to
get involved in a clandestine operation delivering multiple
weapons to a city with a high crime rate. The weapons were
inexpensive handguns, unsuited for hunting or legitimate
pursuits, and unlikely to be used in such quantities for
anything but illegal purposes. The defendant admittedly knew
that the guns would be resold to persons who wished to buy
weapons illegally. The district court was not required to
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7. To be sure, Romero also argues, as a matter of law, that
the scienter requirement of 2K2.1(b)(5)--that the defendant
have "knowledge, intent, or reason to believe" that the
firearm will be used in a future felony offense--should be
narrowly interpreted to require that the defendant have
subjective knowledge. We review a guideline's meaning and
scope de novo. See United States v. Brewster, 1 F.3d 51, 54
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(1st Cir. 1993). Romero, however, cites no meaningful
authority for his position. At any rate, we need not address
this asseveration as, here, the district court supportably
found that Romero possessed such subjective knowledge.
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discard common sense and accept the defendant's assertion
that he believed that the guns would be purchased by
legitimate businessmen for self-protection. See United
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States v. Sklar, 920 F.2d 107, 112 (1st Cir. 1990) (court
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need not "divorce [itself] from common sense").
Romero also argues that it was impermissible double
counting to predicate the 2K2.1(b)(5) increase on the
number of weapons involved since the 2K2.1(b)(1) increase
was based on this same fact. But the district court relied
on much more than the number of weapons involved--for
example, the nature of the weapons and their destination8--
in concluding that Romero knew, or had reason to believe,
that the weapons would be used in future felony offenses. We
therefore find no impermissible double counting.9 Cf.
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United States v. Balogun, 989 F.2d 20, 23-24 (1st Cir. 1993)
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(finding no improper double counting where fact already
accounted for in previous enhancement was one of several
factors relied upon by the court in support of additional
enhancement); United States v. Sanders, 982 F.2d 4, 8 (1st
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Cir. 1992) (concluding that, as the guidelines have been
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8. The district court noted that the weapons involved were
"cheap handgun[s]" which have only one use--injuring or
killing people.
9. We further reject, as without merit, Romero's contention
that the illegal behavior which provided the foundation for
his conviction was subsequently used to justify the
2K2.1(b)(5) enhancement.
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explicit where double counting is to be avoided, an exception
should not be created where none is stated).
Finally, Romero contends that the 2K2.1(b)(5) increase
cannot be predicated on his knowledge that the weapons would
be illegally resold. Defendant correctly points out that
Application Note 18 of the Commentary to U.S.S.G. 2K2.1
states in relevant part:
As used in subsection (b)(5) and (c)(1), "another
felony offense" and "another offense" refer to
offenses other than explosives or firearms
possession or trafficking offenses.
The district court, however, heeded this mandate and viewed
the likely range of felonious activity as far broader then
mere illegal possession or trafficking.
Finding no error, we affirm the judgment below. See
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Loc. R. 27.1.
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