United States v. Romero

Opinion

USCA1 Opinion

November 22, 1993
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

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]
                                         __________________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ____________________

            Van L. Hayhow on brief for appellant.
            _____________
            Edwin  J. Gale,  United  States  Attorney,  and Zechariah  Chafee,
            ______________                                  _________________
        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
                                 ___  ____  _____________    _______

            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,
                                                       _______

            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.

                                         -4-

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.

                                         -5-

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.

                                         -6-

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
                           ___  ____   _____________    _______

            1150, 1158 (1st  Cir. 1993); United States v.  Ruiz, 905 F.2d
                                         _____________     ____

            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
                  _______    ___ _____________    ________
            (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.

                                         -8-

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
                                                              ___  ______

            States v.  Sklar, 920  F.2d 107, 112  (1st Cir.  1990) (court
            ______     _____

            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.
                                                                      ___

            United States v. Balogun, 989  F.2d 20, 23-24 (1st Cir. 1993)
            _____________    _______

            (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
                           _____________     _______

            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.

                                         -9-

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
                                       ______                         ___

            Loc. R. 27.1.

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