          United States Court of Appeals
                     For the First Circuit


No. 17-2102

                         UNITED STATES,

                            Appellee,

                               v.

                        CAETANO OLIVEIRA,

                      Defendant, Appellant.


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

         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                             Before

                  Lynch, Thompson, and Kayatta,
                         Circuit Judges.


     Samia Hossain, Assistant Federal Public Defender, with whom
Jessica P. Thrall, Assistant Federal Public Defender, was on brief
for appellant.
     Alexia Rhae De Vincentis, Assistant United States Attorney,
with whom Caitlin E. Keiper, Special Assistant United States
Attorney, and Andrew E. Lelling, United States Attorney, were on
brief for appellee.


                        October 24, 2018
             LYNCH, Circuit Judge.       Brockton, Massachusetts police

arrested Caetano Oliveira in August 2016 while executing a search

warrant on an apartment in which drugs, drug paraphernalia, guns,

and   ammunition    were   found.    Following     a   federal     indictment,

Oliveira pleaded guilty to being a felon in possession of a

handgun, a pistol, and twenty rounds of ammunition in violation of

18 U.S.C. § 922(g)(1).      His prior state convictions included drug

distribution and assault with a dangerous weapon ("ADW").

             Oliveira requested a sentence of forty-eight months.

The government recommended 100 months, a sentence at the bottom of

the 100- to 120-month range calculated in the presentence report

("PSR").     The district court sentenced Oliveira to eighty-six

months, fourteen months below the government recommendation.                 The

district court could have reached the same sentence within the

guideline range, but calculated the sentence on the basis of an

enhancement.

             Appealing this sentence, Oliveira first disputes the

district court's determination that his prior Massachusetts ADW

conviction qualifies as a "crime of violence" under the United

States   Sentencing   Guidelines     ("the    Guidelines").        Second,   he

challenges    the   district   court's      application   of   a   sentencing

enhancement for possession "in connection with" another felony.

See U.S.S.G. § 2K2.1(b)(6)(B).       We affirm.




                                    - 2 -
           In   the   summer    of   2016,    Brockton       police   had    been

investigating a heroin dealer, Sariah Lynn Miranda, who lived in

the apartment where Oliveira was arrested.         After buying heroin on

multiple occasions from Miranda through a confidential informant,

police obtained a search warrant for Miranda's apartment.                    Once

inside, police found five grams of heroin, cash, a scale, and drug

packaging materials in the bedroom occupied by Miranda. As Miranda

attempted to leave -- with three more grams of heroin in hand --

police arrested her.

           In the apartment's second bedroom, police encountered

Oliveira, whose girlfriend, Saneta Gomes, was an occupant of the

apartment and Miranda's sister.         There, police found, at the end

of the bed, a shoe box containing $160 in cash and 7.6 grams of

marijuana packaged into three separate sandwich bags.                 A digital

scale was perched on a shoe rack.            And a box of empty sandwich

bags was visible on top of the dresser.

           Inside that dresser were two loaded weapons -- a 9mm

handgun and a .40 caliber pistol.          There were eight rounds of 9mm

ammunition and twelve rounds of .40 caliber ammunition.                       The

handgun,   which   had   been   reported     stolen,   was    located   on    the

dresser's shelf, while the pistol was stashed, with some clothes,

inside an orange clothing cube.




                                     - 3 -
               Atop    the    dresser,        police      also    spotted         a    copy   of

Oliveira's resume.           Clothing and mail belonging to Oliveira were

also found around the room.                  Although the resume and mail listed

addresses for Oliveira other than the apartment, Gomes, who lived

in the room, told police, "he stays here a lot."

               Oliveira and Gomes were arrested, and Oliveira admitted

that the guns were his.            Asked later by a detective why he had the

guns, the defendant answered, "I still have people on the street

that don't like me."

               At the time of his arrest, Oliveira was out on bail,

awaiting trial in Massachusetts on charges of ordering an associate

to shoot at two undercover police officers who were talking to an

informant.       During the trial on those charges, in September 2016,

Oliveira      pleaded      guilty       to   ADW.        This    was    his   third       state

conviction.       Oliveira's first two state convictions were in 2011

for illegal gun possession and distribution of crack cocaine.1

               After Oliveira's guilty plea to the federal charges, the

Probation Office prepared a PSR, which recommended a base offense

level       ("BOL")   of     24   based      on     Oliveira's     prior      "two       felony

convictions      for    either      a    crime      of   violence       or    a       controlled

substance offense."           U.S.S.G. § 2K2.1(a)(2).                  In 2016, the First



        1 Another charge for possession with intent to distribute
while carrying a loaded firearm was vacated in 2017 due to
misconduct at the state drug lab.


                                             - 4 -
Circuit had held in United States v. Fields, 823 F.3d 20, 34-35

(1st Cir. 2016), that Massachusetts ADW is a "crime of violence"

under the Guidelines.

            The PSR also recommended several adjustments to this

BOL.       Relevant    is   a    four-level    increase    under    U.S.S.G.

§ 2K2.1(b)(6)(B) for "possess[ion] . . . in connection with another

felony offense," which applied based on the evidence in the bedroom

of possession with intent to distribute marijuana.           In the end, a

total offense level ("TOL") of 27 was calculated.

            In   calculating    Oliveira's    criminal    history   category

("CHC") of IV, the PSR considered the past convictions for gun

possession, crack cocaine distribution, and for assaulting the

police officers.      Also relevant was Oliveira's past membership in

the Ames Street/Flameville Legend Boys gang in Brockton.

            At the sentencing hearing on October 25, 2017, the

district    court   considered    Oliveira's    objections    to    the   PSR.

Oliveira first argued that Massachusetts ADW is not a "crime of

violence" under the Guidelines and that therefore his BOL and CHC

should be lower.       The district court overruled the objection,

"follow[ing] the First Circuit," where that crime "is considered

a crime of violence."

            As to the enhancement under U.S.S.G. § 2K2.1(b)(6)(B),

Oliveira contended that no "felony" had occurred.              He asserted

that the marijuana, bags, and scale were for Gomes's personal use,


                                    - 5 -
not for distribution.        In his sentencing memorandum, Oliveira had

noted   that   the   state    had   charged   Gomes,   not   Oliveira,   with

possession with intent to distribute.             After that charge was

reduced to simple possession, a civil infraction, she admitted

responsibility and paid a fine.        In any event, Oliveira continued,

the connection between the alleged drug trafficking and the guns

was too remote to permit application of the enhancement.

           The district court found there was "ample evidence to

show that the Defendant was fully involved with this potential

distribution of marijuana." And it determined that the enhancement

was appropriate because "a firearm [was] found in close proximity

to drugs, drug-manufacturing materials or drug paraphernalia."

           As mentioned, the district court sentenced Oliveira to

eighty-six months in prison and to three years of supervised

release during which he is not to enter Brockton and not to

associate with members of the Flameville Legend Boys/Ames Street

gang.   Oliveira's involvement in multiple gang-related shootings

was discussed at the sentencing hearing. In one incident, Oliveira

had been the target but his sixteen-year-old girlfriend, who was

standing   next   to   him,   was   killed.     Just   months   before   this

incident, Oliveira had been shot in the head, suffering permanent

hearing damage.      At the sentencing, the defendant acknowledged, "I

need to leave Brockton. . . .         My problems are in Brockton."       The

district court "imposed a sentence 15% below the low end of the


                                     - 6 -
Guideline range to reflect defendant's effort to improve his

situation      and   willingness     to    comply   with    the   geographic   and

associational restrictions imposed."



               We examine the two issues on appeal, in turn.

               First,    questions    of     Guidelines      interpretation     --

including what counts as a "crime of violence" -- are reviewed de

novo.       See United States v. Cannon, 589 F.3d 514, 516-17 (1st Cir.

2009).       As the district court noted, it is settled First Circuit

law that Massachusetts ADW is a "crime of violence" under the

Guidelines.       In United States v. Whindleton, 797 F.3d 105, 115-16

(1st Cir. 2015), we held that the offense categorically qualifies

as a "violent felony" under the force clause of the Armed Career

Criminal Act.           And because the definition of "violent felony"

"mirrors" the definition of "crime of violence" in the Guidelines,

United States v. Montoya, 844 F.3d 63, 73 (1st Cir. 2016), we held

in Fields that Massachusetts ADW is a "crime of violence" under

the Guidelines, 823 F.3d at 34-35.             Fields remains good law.2

               Second,    Oliveira   challenges     on     several   grounds   the

enhancement for possession "in connection" with another felony

under U.S.S.G. § 2K2.1(b)(6)(B).            A district court must find that



        2 Indeed, Oliveira acknowledges that precedent forecloses
his objection, but "raises the argument to preserve it for further
review on certiorari to the Supreme Court."


                                      - 7 -
a preponderance of the evidence supports the enhancement to apply

it.   United States v. Paneto, 661 F.3d 709, 715 (1st Cir. 2011).

We then review the district court's underlying findings of fact

for clear error and its application of the Guidelines to those

facts on a "sliding scale."        United States v. Matthews, 749 F.3d

99, 105 (1st Cir. 2014); see also Cannon, 589 F.3d at 516-17.

           That standard of review decides this issue.              We cannot

say that the district court clearly erred.       As we will detail, the

district   court   applied   the   enhancement   based    on    a   chain   of

inferences, including that there was distribution of the drugs

found in the bedrooms along with drug paraphernalia, that Oliveira

knew of and participated in this, and that illegal guns and

ammunition were connected to the distribution.           That chain may be

tenuous.   But, under the clear error standard, as long as these

inferences were "rational," and we believe that they were, we

cannot reverse.    A "sentencing court's choice among rational but

competing inferences cannot be clearly erroneous."             Matthews, 749

F.3d at 105; see also Cannon, 589 F.3d at 517.           Admittedly, some

of those factual inferences were built on thin evidence.              Yet the

clear error standard means that we "will not reverse" factual

findings "absent 'a strong, unyielding belief that a mistake has

been made.'"   United States v. Gómez-Encarnación, 885 F.3d 52, 56

(1st Cir. 2018) (quoting United States v. Torres-Velazquez, 480




                                   - 8 -
F.3d 100, 103 (1st Cir. 2007)).          As we will explain, we lack that

strong, unyielding belief here.

            The    district   court     found   felony       distribution,     by   a

preponderance of the evidence, based on the totality of the

evidence in the bedroom: the 7.6 grams of marijuana split across

three bags, in addition to the empty sandwich bags, the cash, the

scale, and the two illegal guns.          These markers are "probative of

the intent to distribute narcotics."              United States v. Ford, 22

F.3d 374, 383 (1st Cir. 1994).           That is especially so when found

together.    See Matthews, 749 F.3d at 105 (explaining that we look

at evidence of intent to distribute "in its totality").                  Finally,

Miranda's   heroin      dealing   in    the    other    bedroom   of    the   small

apartment buttresses the inference that the marijuana, scale,

cash, bags, and guns were possessed for distribution.                  In the end,

we cannot say -- with the strong, unyielding belief required of

clear error review -- that the district court made a clear error

in inferring distribution from this evidence.

            We also see no clear error in the district court's choice

not to accept Oliveira's claim that the marijuana was intended

exclusively for Gomes's personal use. Gomes made no such statement

to the Probation Office.          Rather, Oliveira urges that this is a

necessary implication of the plea deal Gomes struck with the state,

under   which     her   distribution     charge        was   reduced   to     simple

possession.       The scale and baggies, he says, are also consistent


                                       - 9 -
with possession for personal use.        Oliveira emphasizes that "the

Commonwealth   [of   Massachusetts]   has . . . de-criminalized    the

possession of less than one ounce of marijuana."3      As a result, he

says, "it is unreasonable to automatically assume that digital

scales, cash, and sandwich bags are distribution paraphernalia."

For example, the scale could have helped Gomes "ensure [she was]

purchasing amounts [of marijuana] within the confines of the law."

          None of that means there was clear error.       It is not at

all obvious (and Oliveira supplied no evidence of a reason) why

Oliveira or Gomes would have kept the marijuana in numerous baggies

if it were for personal use.     While plastic bags and scales have

other uses, there is neither evidence nor an assertion by Oliveira

that the bags and scale were used for, say, food preparation (and,

remember, they were found in the bedroom, not in the kitchen), or

for any other reason.    Finally, near the drugs and classic drug

distribution paraphernalia, Oliveira possessed two illegal guns.

Guns are "tools of" the drug trafficking trade.      See Ford, 22 F.3d

at 383.   And Oliveira was a convicted practitioner of that trade

who had recently targeted undercover officers. At most, Oliveira's

theory shows that the district court chose between two possible

interpretations of the facts.    What Oliveira fails to show is that


     3    Under Massachusetts law, "a person 21 years of age or
older" cannot face criminal penalties for "using, purchasing,
processing or manufacturing 1 ounce or less of marijuana." Mass.
Gen. Laws ch. 94G, § 7.


                                - 10 -
the   district   court's    inference    that   the   marijuana      was   for

distribution was irrational.     We cannot say there was clear error.

           The district court also did not clearly err in finding

"ample   evidence"   of     Oliveira's      involvement   with      the    drug

distribution.    Oliveira stayed in the apartment "a lot" and his

personal items -- his guns and ammunition, resume, mail, and

clothing -- were found there. Further, Oliveira was actually there

at the time of the police search, at the time the officers found

plastic bags, the digital scale, and three bags of marijuana in

one bedroom and heroin for distribution in another. Based on this,

we cannot say that the district court clearly erred in finding

that Oliveira was involved.

           Oliveira's     argument   that    this   finding   was    improper

because neither the marijuana nor the bedroom were his misses the

mark. The bedroom, drugs, and paraphernalia need not have belonged

to Oliveira.     The enhancement applies where the defendant has

access to the drugs and where his knowledge of drug distribution

can be inferred. See Cannon, 589 F.3d at 519. Oliveira's frequent

overnight stays in the room and the presence of his belongings

there indicate sufficient access.           See United States v. Zavala

Maldonado, 23 F.3d 4, 7 (1st Cir. 1994) (defining constructive

possession in part as location of the object in a "domain specially

accessible to the defendant").           As to his knowledge, Oliveira

claims ignorance of the marijuana inside the shoe box and the scale


                                 - 11 -
on the shoe rack and maintains that his knowledge cannot be

inferred from awareness of the sandwich bags alone.                       The marijuana

and cash were found in a box at the end of the bed often shared by

Gomes and Oliveira.         The particular usefulness of plastic bags and

small digi-scales for packaging drugs for resale is well known,

especially among those who, like Oliveira, have experience with

drug distribution.           See Cannon, 589 F.3d at 515-19 (finding

knowledge     based    in     part     on        defendant's       "history    of     drug

distribution").       In the end, Oliveira had the requisite knowledge.

            Oliveira's final argument is that the district court

erred in applying the enhancement because the guns and ammunition

were possessed for his own protection and not "in connection with"

drug trafficking.       In applying the § 2K2.1(b)(6)(B) enhancement,

the   district     court      relied        on     Guidelines       Application       Note

14(B)(ii), which states that the enhancement applies "in the case

of a drug trafficking offense in which a firearm is found in close

proximity     to   drugs,       drug-manufacturing               materials,    or     drug

paraphernalia."        Based     on   this        Note,    we    have   held   that   the

enhancement    attaches       where    firearms           near    drugs   "ha[ve]     the

potential of facilitating" drug trafficking.                      Paneto, 661 F.3d at

717   (emphasis       added).         Applying       the        enhancement    was     not

inappropriate, then, in light of the facts:                       Oliveira's firearms

were loaded and next to extra ammunition in a bedroom containing

drugs and drug trafficking materials. See id. (firearm and cocaine


                                       - 12 -
in   "same    small   single-floor   apartment");    United   States   v.

Sturtevant, 62 F.3d 33, 34 (1st Cir. 1995) (per curiam) ("[T]he

presence of a readily available weapon in a location containing

drugs is enough.")      Oliveira's statement that he possessed the

guns for his own protection does not change this, for the simple

reason that guns can be possessed for more than one purpose.



             We affirm the defendant's sentence.



                      -Concurring Opinion Follows-




                                 - 13 -
              THOMPSON, Circuit Judge, concurring.          I write separately

to draw the attention of bench and bar to the only truly troubling

aspect of this appeal — namely, the district judge's use of

inference-drawing       to    find     felony     drug    distribution   by     a

preponderance of the evidence, thus triggering a major sentencing

enhancement for Oliveira.

              I know, as the lead opinion notes, that the Federal

Reporter is teeming with First-Circuit cases letting factfinders

infer a defendant's distributive intent from the drug amounts

possessed,      as    well   as   from    the     possession   of    drug-trade

accoutrements like digital scales, baggies, cash, and guns.                   See

United States v. Cortés–Cabán, 691 F.3d 1, 35-36 & nn. 37, 39-41,

43, 45 (1st Cir. 2012) (citing a host of cases); see also United

States v. Matthews, 749 F.3d 99, 105 (1st Cir. 2014).                And I also

know   that     the   standard    of   review     for    assessing   sentencing

enhancements — clear error — often determines the issue's outcome.

That's so because, as the lead opinion also notes, clear-error

review is incredibly deferential, requiring us to accept the

judge's fact findings absent a strong and abiding belief that he

slipped up — all while being mindful that the judge's choice

between two plausible but differing fact inferences can't be

clearly erroneous.       See, e.g., Matthews, 749 F.3d at 105; Cumpiano

v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990).              Which

makes showing clear error a hard task for any appellant, see, e.g.,


                                         - 14 -
Matthews, 749 F.3d at 105 — a task Oliveira has not accomplished

here.

             Now here's the problem.      Times have changed since we

first approved the sort of inference-drawing I just described.

Oliveira   was   charged   federally,   to     be   sure.     But   there's   a

"growing" trend at the state level toward legalizing or at least

decriminalizing marijuana.         See DeBartolo v. United States, 790

F.3d 775, 779 (7th Cir. 2015) (Posner, J.).             Take, for example,

some of the jurisdictions in our circuit, whose relevant laws I

discuss next (without delving into every last legal detail).

             Massachusetts, for example, has legalized recreational

marijuana.    As the lead opinion states, a Massachusetts statute —

titled "Personal use of marijuana" — says that persons "21 years

old or older" can't be punished criminally for "using, purchasing,

processing or manufacturing 1 ounce or less of marijuana," see

Mass. Gen. Laws. Ch. 94G, § 7; Oliveira's 7.6 grams of marijuana

is less than 1 ounce (for anyone unfamiliar with the metric system,

1 ounce equals 28.3495 grams).         Nor can persons 21 years old or

older be on the hook criminally "for . . . giving away . . . up to

1 ounce of marijuana . . . to a person 21 years of age or older,

as long as the transfer is not advertised or promoted to the

public."       See   id.     And     because    of    these    developments,

Massachusetts's top court — known colloquially as the "SJC" (short

for the "Supreme Judicial Court") — has held that the mere smell


                                      - 15 -
of marijuana is "not sufficient to support a reasonable suspicion

of criminal activity."       See Commonwealth v. Villagran, 81 N.E.3d

310, 317 (Mass. 2017) (citing Commonwealth v. Rodriguez, 37 N.E.3d

611, 618 (Mass. 2015)). What's more, persons 21 years old or older

can't be punished criminally in the Commonwealth "for possessing,

purchasing, or otherwise obtaining or manufacturing marijuana

accessories or for selling or otherwise transferring marijuana

accessories to a person who is 21 years of age or older . . . ."

See Mass. Gen. Laws. Ch. 94G, § 8. That statute defines "marijuana

accessories" as "equipment, products, devices or materials of any

kind that are intended or designed for . . . preparing, . . .

packaging,    repackaging,    [or]    storing,"   id.       —    a     definition

seemingly broad enough to cover digital scales and baggies, for

instance.     And speaking of scales, when it comes to medical

marijuana — which Massachusetts legalized years ago — the SJC has

held that qualifying "patients may need use of a scale to weigh

the marijuana they grow, so as to ensure they do not exceed" the

amount they're legally permitted to cultivate.              See Commonwealth

v. Richardson, 94 N.E.3d 819, 835 n.23 (Mass. 2018).

            Rounding   out   the   picture,   Maine   has       also    legalized

recreational marijuana.      A Maine law — called "Personal adult use

of marijuana and marijuana products" — says that "person[s] 21

years of age or older" can "[u]se, possess or transport marijuana

paraphernalia" and "[u]se, possess or transport at any one time up


                                     - 16 -
to 2½ ounces of marijuana . . . ."           See Me. Rev. Stat. tit. 28-B,

§ 1501.     The Maine law also lets persons 21 years old or older

"[t]ransfer or furnish, without remuneration, to a person 21 years

of age or older up to 2½ ounces of marijuana . . . ."                 Id.    New

Hampshire    and    Rhode    Island    have    decriminalized       marijuana,

eliminating (for the most part) the possibility of jail time for

possessing small amounts of marijuana for personal use.                       See

respectively N.H. Rev. Stat. Ann. § 318-B:2-c; R.I. Gen. Laws Ann.

§ 21-28-4.01.      And Maine, New Hampshire, Puerto Rico, and Rhode

Island    permit   marijuana    use    for    medicinal      purposes.        See

respectively    Me.   Rev.   Stat.    tit.    22,    §   2423-A   (Lexis    2018)

(effective July 9, 2018); N.H. Rev. Stat. Ann. § 126-X:2; P.R.

Laws Ann. tit. 24, § 2623b; R.I. Gen. Laws § 21-28.6-4.

            Which gets me to my point.              Given these recent legal

changes (with more likely on the way), perhaps someday we as a

court will have to reconsider whether a factfinder can reasonably

infer felonious intent to distribute in part from a defendant's

lawful possession — under state law, anyway — of both personal-

use marijuana and marijuana-related paraphernalia.                But today is

not that day.

            And having said my piece, I join my colleagues in

affirming Oliveira's sentence.




                                      - 17 -
