
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          November 22, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                 ____________________                     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.                                 ____________________                                 ____________________                 Per Curiam.  After purchasing multiple handguns in Rhode                 __________            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                                            ____________________            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.                                         -3-                 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                                            ____________________            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                                            ____________________            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                                              ____________________            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                                         -7-            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                                            ____________________            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                                            ____________________            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.                                         -10-
