            United States Court of Appeals
                       For the First Circuit

No. 13-1070
                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                     MARCELINO GUZMÁN-MONTAÑEZ,

                        Defendant-Appellant.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF PUERTO RICO

           [Hon. Francisco A. Besosa, U.S. District Judge]


                               Before

                Torruella and Lipez, Circuit Judges,
                     and Gelpí,* District Judge.


     Víctor J. González-Bothwell, First Assistant Federal Public
Defender, with whom Héctor E. Guzmán-Silva, Jr., Federal Public
Defender, Héctor L. Ramos-Vega, Assistant Federal Public Defender,
and Liza L. Rosado-Rodríguez, Research and Writing Specialist,
were on brief for appellant.
     Luke V. Cass, Assistant United States Attorney, with whom Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
were on brief, for appellee.



                            June 13, 2014




     *
         Of the District of Puerto Rico, sitting by designation.
               GELPÍ, District Judge. A jury in the District of Puerto

Rico convicted Marcelino Guzmán-Montañez (“Guzmán”) for being a

felon     in        possession     of     a   firearm      in   violation        of

18 U.S.C. § 922(g)(1) (“count one”), and for possession of a

firearm in a school zone in violation of 18 U.S.C. §§ 922(q)(2)(A)

& 924(a)(4) (“count two”).              The District Court sentenced Guzmán to

60 months of imprisonment as to both counts.

               On appeal Guzmán raises the following claims of error.

First, he argues that the district court improperly admitted

evidence that was both irrelevant and unfairly prejudicial.

Second, he posits that the evidence presented by the government

during trial was insufficient to sustain his convictions as to both

counts.    Finally, he contends that the sentence imposed upon him

was procedurally and substantively unreasonable.                   We affirm the

conviction and sentence as to the felon in possession count.

However,       we    reverse     the    conviction   and   sentence   as    to    the

possession of a firearm in a school zone count.                       We discuss

Guzmán’s claims seriatim.

I.             Relevant Factual and Procedural Background

               During the morning hours of March 14, 2012, Santiago

Nieves-Rivera (“Nieves”), owner of a lechonera1 restaurant in



     1
          In Puerto Rico lechón is roasted pork, and lechoneras are
generally open air establishments where the entire animal is cooked
rotisserie style. Fritters and alcoholic beverages are also sold.


                                           -2-
Bayamón, Puerto Rico, saw a burgundy-colored car drive slowly by

his establishment.       Just then, the vehicle backed up and returned

to his establishment.         Two men exited the vehicle. They approached

Nieves to order fritters.          One of these men was Guzmán.            Nieves

found the situation very suspicious.                Nervous, afraid, and while

firmly holding his machete, Nieves asked both men to leave.                    At

that moment, he noticed a silver gun tucked on the side of the

waist of one of the men as they were exiting.                The man carrying the

gun was later identified as “the skinny one” (hereinafter “the

other suspect”).        As soon as they left, Nieves called the police

and reported the events. He provided a physical description of the

suspects and their vehicle, a burgundy Suzuki SX4 with licence

plate number HPH 299.         Nieves did not see Guzmán carrying a gun.

              The event was broadcast over the police radio as an

attempted robbery. Police Officer Carmen Nieves de Jesús (“Nieves

de Jesús”), while on patrol duty, subsequently saw two men exiting

a   vehicle    parked    in   front   of    a     Church’s   Chicken   fast   food

restaurant at the Rexville Shopping Center in Bayamón. The men and

vehicle matched the description she heard over the radio. Quickly,

she reported her identification of the individuals via radio

broadcast.       Officer      Edilberto     Mojica-Caldero       (“Mojica”)   was

patrolling     the   area     together     with    officer    José   Arroyo-Pérez

(“Arroyo-Pérez”).        They heard Nieves de Jesús’s radio call and




                                         -3-
headed towards the area.        At the time, both police officers were

wearing civilian clothing.

            As   Mojica   and   Arroyo-Pérez    approached      the    Church’s

Chicken parking lot, they spotted the burgundy Suzuki vehicle.

Arroyo-Pérez remained near the vehicle while Mojica observed the

two men from outside the fast food restaurant.           Mojica watched as

Guzmán stood in line to order food.            Then, he noticed a black

pistol protruding from Guzmán’s waistband.

            From that moment on, the following events took place

rapidly.    Outside, marked patrol cars arrived.          Immediately, the

other suspect approached Guzmán and whispered something in his ear.

Without delay, Guzmán left the line and walked quickly towards the

bathroom.    He entered the bathroom for a brief moment.              As Guzmán

exited the bathroom, Mojica entered the restaurant and detained

both men.   However, Guzmán was no longer carrying in his waistline

the object Mojica had seen on him moments earlier. As the suspects

were   detained,    officers    Arroyo-Pérez    and    Ismael    Díaz-Rivera

(“Díaz”) entered the bathroom searching for additional suspects.

None were found.

            Following     the   other    officers’    search,   Mojica     then

searched the bathroom and found a pistol in the diaper changing

station.    The pistol was in plain sight, stuck between the plastic

partitions of the diaper changing station. The firearm was a black

Smith and Wesson pistol, model 4003 tactical, .40 caliber.                  The


                                        -4-
police officers who searched the bathroom before Mojica did not see

the weapon.    In turn, Guzmán and the other suspect were placed

under arrest. Shortly thereafter, the police officers searched the

burgundy Suzuki vehicle. They seized a silver Beretta pistol found

inside the glove compartment.      The weapon matched the description

of the gun Nieves reported seeing the other suspect carry at the

lechonera.

           On March 15, 2012, a complaint was filed against Guzmán

charging him with being a convicted felon in possession of a

firearm.     Shortly thereafter, a federal grand jury returned a

two-count indictment.     Both counts charged Guzmán with possessing

a Smith and Wesson pistol, Model 4003 tactical, serial number

VJL7561, .40 caliber.     Count one charged Guzmán with being a felon

in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Count two, in turn, charged him with possessing a firearm in a

school zone in violation of 18 U.S.C. §§ 922(q)(2)(A) & 924(a)(4).

Guzmán exercised his constitutional right to trial by jury.

           Prior   to   trial,   Guzmán   moved   in   limine   to   exclude

Mojica’s testimony relating to the silver Beretta pistol seized

from the vehicle following the arrest. The District Court reserved

its ruling.

           During trial, Mojica testified about the silver Beretta

pistol seized in the vehicle.             Guzmán renewed his objection

arguing, once again, that the Beretta pistol was immaterial,


                                   -5-
irrelevant to the charges, and had a prejudicial effect because it

was not the weapon he was charged with possessing.    The District

Court overruled the objection, permitted the testimony, and gave

the jury the following instruction:

          All right. Ladies and gentlemen of the jury,
          this weapon has nothing to do with this case.
          It was just part of the inventory that was
          made by the police and found by Agent Mojica.
          But the -- Mr. Guzmán is not on trial for
          possession of this particular weapon, the one
          that was found in the car. Okay? All right.

The court provided a second instruction during Mojica's testimony,

following his description of the silver Beretta pistol, and its

admission as an exhibit:2

          Ladies and gentlemen, I want to stress to you
          again that this is a different pistol from
          that found in the bathroom. And that Mr.
          Guzmán is not charged with possession of this
          Beretta pistol. Is that understood? Okay. Go
          ahead.

          Guzmán moved for a mistrial arguing the silver Beretta

weapon found in the vehicle constituted irrelevant, prejudicial and

inflammatory evidence.   The government, in turn, argued that the

evidence was necessary to provide the jury with the complete

factual scenario of what transpired.    The District Court denied

Guzmán’s request.




     2
          A third instruction regarding the Beretta pistol was
provided to the jurors together with the rest of the jury
instructions before deliberation.

                               -6-
              Regarding the second count, to prove that the events took

place       within      a     school        zone,        in         violation       of

18   U.S.C.    §§    922(q)(2)(A)      &   924(a)(4),         the    prosecution     used

Mojica’s testimony to establish the proximity between Church’s

Chicken     and   the   Colegio   Emmanuel         Discípulos        de    Cristo   (“the

school”), as well as Guzmán’s knowledge of being within the

requisite distance. According to Mojica, the school is located 300

feet away from Church’s Chicken and is visible from inside the

establishment.3         The   government         also   submitted         as   evidence   a

picture of the school’s main gate.

              After the prosecution rested, Guzmán filed a motion for

acquittal under Rule 29 of the Federal Rules of Criminal Procedure,

arguing that the prosecution’s evidence was insufficient to sustain

his convictions.        The District Court denied Guzmán’s motion as to

count one and reserved its judgment as to count two.

              The jury convicted Guzmán on both counts. After the

verdict, Guzmán filed a subsequent motion under Rule 29 as to count

two, since the District Court had not yet ruled on his earlier

acquittal motion. The Court denied Guzmán’s motion for acquittal.

              The pre sentence report (“PSR”), prepared by the United

States Probation Office, recommended a combined base offense level

of 14, pursuant to U.S.S.G. § 2K2.1(a)(6), and a two-level (2)



        3
       The parties had previously stipulated that the fast food
restaurant was located 140 feet from the school.

                                           -7-
enhancement         for    stolen         firearms,        pursuant       to

U.S.S.G. § 2K2.1(b)(4)(A), yielding a total offense level of 16

with Criminal History Category I.         The applicable sentencing range

for these calculations was 21 to 27 months, with no statutory

minimum sentence.

           The government argued for a sentence of 72 months.             The

District Court imposed a sentence of 60 months of imprisonment.

The Court based its variance on Guzmán’s criminal history and the

nature of the offense.

II.        Discussion

           A.       Admission of the Gun Evidence

           To prove Guzmán was in possession of the firearm charged

in the indictment, the government presented evidence of both the

black Smith and Wesson pistol found in the bathroom at Church’s

Chicken, and the silver Beretta pistol recovered from the burgundy

Suzuki   vehicle.     Guzmán   argues     that   the   Beretta   pistol   was

irrelevant and, thus, the District Court abused its discretion by

admitting it as evidence.       He asserts that the silver Beretta

pistol is completely unrelated to the elements of the offense and

that the erroneous admission of such irrelevant evidence caused

unfair prejudice which, in turn, influenced the jury’s verdict. At

trial, Guzmán argued as follows:

           The Government is now going to do pictures
           relating to the search of the vehicle, of the
           gun. I move for a mistrial based on the
           inflammatory nature of this, the fact that it

                                    -8-
              has prejudicial effect. As the Court correctly
              stated, it really has nothing to do with the
              case, he's not charged with it. And under 402
              and 403 it's immaterial, irrelevant and has
              prejudiced the jury as to the fact -- because,
              remember, there's the testimony of Papo Nieves
              saying he saw a weapon on the slim defendant,
              which we now know to be Miguel. So now they
              can make the comparison that that is the gun
              that was in the vehicle or that might be the
              gun that was in the bathroom....

              The   government,     in   turn,   argued    below   that   without

evidence of the silver Beretta pistol, the jury would be deprived

of the complete set of facts and could become confused:

              Our position is that if we don't do that,
              maybe they are misled. Because the first
              witness said that he saw a pistol on Miguel.
              So now we are entering this evidence as there
              was another firearm. And also admit the
              description of the firearm described by the
              first witness. So we are not misleading the
              jury in the sense --

              At trial, Guzmán timely objected, on more than one

occasion, to the testimony regarding the Beretta pistol, and the

introduction of the weapon as an exhibit. The argument having been

preserved for appeal, we review the District Court’s ruling for

abuse of discretion.        United States v. Williams, 717 F.3d 35, 40

(1st   Cir.    2013).      We    proceed   to    discuss   Guzmán’s   arguments

regarding the admission of evidence accordingly.

                      1.   Relevance

              Guzmán argues that evidence of the silver Beretta pistol

seized is irrelevant.           We disagree.     As he correctly points out,

the Beretta pistol is not the firearm charged in the indictment.

                                         -9-
Albeit true, such fact is not dispositive of this evidentiary

issue, and it does not automatically entail its irrelevance. This

second weapon was important to the prosecution’s case to the extent

that it corroborated the fact that Guzmán and the other suspect

each had a different weapon.

          Rule   401   of   the   Federal   Rules   of   Evidence   defines

“relevant evidence” as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be

without the evidence.”       Fed. R. Evid. 401.          “Evidence may be

‘relevant’ under Rule 401's definition, even if it fails to prove

or disprove the fact at issue-whether taken alone or in combination

with all other helpful evidence on that issue.”          United States v.

Candelario-Silva, 162 F.3d 689, 704 (1st Cir. 1998)(quoting United

States v. Schneider, 111 F.3d 197, 202 (1st Cir. 1997)).

          Mojica narrated the events that took place at Church’s

Chicken, starting from his observations while he stood outside the

restaurant, all the way up to the arrests of both individuals and

the seizing of both weapons.          His testimony corroborated the

government’s theory that Guzmán was in possession of the black

Smith and Wesson pistol, while the other suspect carried the silver

Beretta pistol, as initially observed by Nieves at the lechonera.




                                   -10-
              We thus conclude that in the case before us the District

Court did not err by admitting as relevant evidence the existence

of the silver Beretta pistol.

                     2.      Federal Rule of Evidence 403

              Guzmán next contends that the District Court abused its

discretion under Rule 403 of the Federal Rules of Evidence by

admitting evidence of the silver Beretta pistol, thus creating

unfair prejudice.         Rule 403 provides that “[t]he court may exclude

relevant      evidence     if   its   probative     value   is    substantially

outweighed by a danger of . . . unfair prejudice.”                Fed. R. Evid.

403.   Guzmán posits that the evidence dangerously invited the jury

to infer that he was in possession of a weapon because he arrived

in a vehicle where another gun was found.

              Time and again this court has afforded considerable

deference to a district court’s evidentiary balancing act.                    “We

usually defer to the district court’s balancing under Rule 403 of

probative value against unfair prejudice.” United States v. Smith,

292    F.3d    90,   99     (1st    Cir.   2002).     “Only      rarely—and    in

extraordinarily compelling circumstances—will we, from the vista of

a cold appellate record, reverse a district court's on-the-spot

judgment concerning the relative weighing of probative value and

unfair effect.”      United States v. Currier, 836 F.2d 11, 18 (1st

Cir. 1987) (quoting Freeman v. Package Mach. Co., 865 F.2d 1331,

1340 (1st Cir. 1988)).             “[T]he law shields a defendant against


                                       -11-
unfair prejudice, not against all prejudice.”                 Smith, 292 F.3d at

99.   “[A]ll evidence is meant to be prejudicial; it is only unfair

prejudice     which    must        be     avoided.”          United     States      v.

Rodríguez–Estrada, 877 F.2d 153, 156 (1st Cir. 1989).                      Without a

doubt, evidence presented by the government in a criminal case is

always   prejudicial    to    the       defendant.     “If    it    were   not,   the

prosecution would not be introducing it. . . .                In conducting this

balancing test, the district court has especially wide latitude,

and   Rule    403   tilts    the    balance     in    favor    of     admission.”

Candelaria–Silva, 162 F.3d at 705 (citations omitted)(internal

quotation marks omitted).

             At trial, Guzmán challenged the inflammatory nature of

the silver Beretta pistol due to the fact that “nowadays, people

don’t like guns.”      The District Court was not required to shield

Guzmán from the social dislike of weapons prompted by Puerto Rico’s

significantly high criminality rate. This does not create a per se

automatic unfair prejudicial effect.

             Moreover, the District Court was emphatic that the silver

Beretta pistol was not the weapon Guzmán was charged with in the

indictment.     We find that the instructions given by the District

Court were clear and sufficient, and adequately eliminated any

potential confusion or unfairly prejudicial inferences the jury

could have been inclined to make.            See United States v. Sepúlveda,

15 F.3d 1161, 1184 (1st Cir. 1993) (“[C]ourts have long recognized


                                         -12-
that, within wide margins, the potential for prejudice stemming

from improper testimony. . . can be satisfactorily dispelled by

appropriate curative instructions.”).           For the foregoing reasons,

we find no evidentiary errors with respect to the admission of the

silver Beretta pistol.

           B.       Sufficiency of the Evidence

           Guzmán also argues he was entitled to a judgment of

acquittal on both counts. We review the District Court’s denial of

a Rule 29 motion de novo.         United States v. Pérez-Meléndez, 599

F.3d 31, 40 (1st Cir. 2010).

           When evaluating the sufficiency of evidence, “we draw the

facts and all reasonable inferences therefrom in the light most

agreeable to the jury verdict.” Williams, 717 F.3d at 38; see also

United States v. Walker, 665 F.3d 212, 224 (1st Cir. 2011).                This

is not an easy challenge for an appellant. “Defendants challenging

convictions for insufficiency of evidence face an uphill battle on

appeal.”     United States v. Hernández, 218 F.3d 58, 64 (1st Cir.

2000).

                    1.    Knowing possession of a firearm

           To sustain a conviction under 18 U.S.C. § 922(g)(1) the

government    has   to   prove   beyond    a   reasonable   doubt   that   the

defendant: 1) was a convicted felon; and 2) knowingly possessed a

firearm; 3) in circumstances that implicated interstate commerce.

Williams, 717 F.3d at 38 (citing United States v. Staula, 80 F.3d


                                    -13-
596, 604 (1st Cir. 1996)).        Here, the parties stipulated that,

pursuant to 18 U.S.C. § 922(g)(1), Guzmán was a convicted felon,

and that the firearm was transported through the channels of

interstate    commerce.      Hence,   to    sustain   a    conviction,       the

prosecution’s     burden    was   limited    to   proving     the    “knowing

possession” element.        Guzmán argues the prosecution failed to

prove this element beyond a reasonable doubt because Mojica’s

testimony was insufficient.       We disagree.

             “Knowing possession of a firearm” may be proven through

either   actual   or   constructive   possession.         United    States    v.

Liranzo, 385 F.3d 66, 69 (1st Cir. 2004). Actual possession is the

state of immediate, hands-on physical possession. United States v.

Zavala-Maldonado, 23 F.3d 4, 6 (1st Cir. 1994).                Constructive

possession can be established by proving that the person has the

power and intention of exercising dominion and control over the

firearm.     United States v. DeCologero, 530 F.3d 36, 67 (1st Cir.

2008).   Either form of possession can be proven by way of direct or

circumstantial evidence. United States v. Rodríguez, 457 F.3d 109,

119 (1st Cir. 2006).       We have also held that a conviction may be

entirely supported by circumstantial evidence.             United States v.

Wight, 968 F.2d 1393, 1398 (1st Cir. 1992).

             In United States v. Robinson, we found that evidence of

a defendant’s opportunity to store guns in an engine compartment

was sufficient to establish constructive possession. 473 F.3d 387,


                                   -14-
398-99 (1st Cir. 2007).   “[A]s long as a convicted felon knowingly

has the power and the intention at a given time of exercising

dominion and control over a firearm or over the area in which the

weapon is located, directly or through others, he is in possession

of the firearm.”   Wight, 968 F.2d at 1398.

           In the case before us, Mojica testified he saw a weapon

on Guzmán’s waist before he entered the bathroom.      When Guzmán

became aware of the police officers arriving at the scene, he

stepped out of the line and walked towards the bathroom.   Moments

later, Mojica saw Guzmán exit the bathroom where the weapon was

found.   A rational jury could have concluded that Guzmán’s actions

reflected his ability and intention to exercise dominion and

control over the firearm.     He was seen with the pistol before

entering the bathroom, and was without it when he walked out.   He

was also the last person to enter and exit the bathroom before the

weapon was found. Mojica’s observations, thus, provided sufficient

evidence to prove Guzmán was in constructive possession of the

Smith and Wesson firearm found in the bathroom.

           Standing alone, Mojica’s testimony is circumstantial

evidence sufficient to demonstrate Guzmán was in constructive

possession of the Smith and Wesson.    In addition, the prosecution

introduced into evidence the restaurant’s surveillance video which

shows Guzmán walking into the bathroom and then exiting, upon the

arrival of the other police officers to the restaurant.


                                -15-
            Guzmán maintains that, because Mojica’s testimony was, in

his view, clearly inconsistent with the testimony of the other

police officers, it is insufficient to sustain his conviction.             He

further   argues    that,   because    he    denied   having   possessed   the

firearm, additional objective evidence was needed to corroborate

the conflicting evidence. This argument is unconvincing. The mere

existence   of   conflicting    testimony      does   not   render   evidence

insufficient.      United States v. Calderón, 77 F.3d 6, 10 (1st Cir.

1996)(explaining that it falls within the jury’s province whether

it chooses to believe a witness’s testimony over another).

“Evidence does not become legally insufficient merely because of

some inconsistencies in witnesses’s testimony.”                Rodríguez, 457

F.3d at 119.        Conflicting theories are for the factfinder to

decide, not for us to entertain. United States v. López-López, 282

F.3d 1, 19 (1st Cir. 2002).

            In this case, the jury had two stories from which to

choose. The prosecution theorized that, as Guzmán stood in line at

the fast food restaurant, he was alerted that policemen arrived.

That is why he abandoned his place in line, entered the bathroom,

hid the weapon in the diaper changing station, and, as he exited

the bathroom, was detained.           On the other hand, Guzmán denied

having possessed any weapon or having left the line to enter the

bathroom.




                                      -16-
            When the issue lies on credibility of the evidence, it is

up to the jury to decide.      The factfinder is free to conduct its

own interpretation of the evidence.           Wight, 968 F.2d at 1938.         The

fact that the jury opted to give more weight to one version of the

facts over another is not for us to review.                   United States v.

Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)(“On appeal, it is not the

appellate     court’s   function    to    weigh      the     evidence   or   make

credibility judgments.       Rather, it is for the jury to choose

between varying interpretations of the evidence.”)(citing United

States v. Maraj, 947 F.2d 520, 523 (1st Cir. 1991)).                Here, we must

determine whether the jury’s verdict is supported by a “plausible

rendition” of the totality of the circumstance.

            The   court’s   duty   is    to   make    sure    the   evidence   is

sufficient to support the conviction.                “We do not atomize our

analysis.      We consider the evidence in its totality, not in

isolation, and the government need not negate every theory of

innocence.”    United States v. Angulo-Hernández, 565 F.3d 2, 7 (1st

Cir. 2009).

            The evidence provided by the government was sufficient.

Mojica’s depiction of the facts offered a plausible rendition of

Guzmán’s alleged possession of the firearm.            Said rendition of the

facts convinced the jury. We therefore reject Guzmán’s sufficiency

of the evidence challenge to count one.




                                    -17-
          2.        Possession of a firearm within a school-zone

          Under 18 U.S.C. § 922(q)(2)(A) “[i]t shall be unlawful

for any individual knowingly to possess a firearm that has moved in

or that otherwise affects interstate or foreign commerce at a place

that the individual knows, or has reasonable cause to believe, is

a school zone.”      A school zone is an area within a school or

“within a distance of 1,000 feet from the grounds of a public,

parochial or private school.”    18 U.S.C. § 921 (a)(25); see United

States v. Nieves Castaño, 480 F.3d 597 (1st Cir. 2007).       Guzmán

contends that the prosecution’s evidence was insufficient to prove

the requisite element that he knew or reasonably should have known

he was in a school zone while possessing a firearm.    We agree.

          Colegio Emmanuel de Discipulos de Cristo is a school, as

defined by 18 U.S.C. § 922(q)(2)(A), that teaches pre-kindergarden

to   sixth grade.    The school is located on Route 167, across the

street from Rexville Shopping Center in Bayamon, where the Church’s

Chicken is located.     The parties stipulated the distance between

Church’s Chicken and the school was less than 1,000 feet.4

          At trial Mojica stated that the school was visible from

within the establishment, but provided no additional information.

No other witness testified as to this matter.       Mojica’s entire

testimony follows:


     4
          As discussed earlier, the exact distance stipulated was
140 feet. However, at trial, Mojica indicated that his measurement
of the location yielded a distance of less than 300 feet.

                                 -18-
MS. MONTANEZ: Q. All these events took place
-- this in particular of the Church and the
finding of the Smith & Wesson pistol - in
Church. What is nearby that restaurant?
A. In the front side of the establishment
there's a bilingual school for children,
primary level.
Q. And how far is that school from the
Church's restaurant?
A. I'd say less than 300 feet.
Q. Okay. And how do you know that?
A. I measured it.
Q. Can you see the school from the Church?
A. Correct, yes.
Q. How do you measure the distance from the
Church's Chicken restaurant to the school?
A. With a scene measuring device from the
traffic unit in Bayamón. From the door --
. . .
THE WITNESS: From the door towards the main
gate of said school.
BY MS. MONTANEZ:
Q. And that scene measuring device you took it
from where, you said?
A. That was given to me by one of the agents
of the traffic division in Bayamón which --
and it's used for investigation of deathly
accidents.
Q.   From   which   door   you  started   your
measurement?
A. From the main door of the establishment.
That's the one I went through.
Q. Until?
A. Up to the main gate of Emmanuel school.
That's the name of it.
MS. MONTANEZ: I have no more questions, Your
Honor.
THE COURT: I have -- let me -- when you say
the school main gate, do you mean the school
has a fence?
THE WITNESS: Correct, yes.
THE COURT: And the gate is on that fence, and
you measured to that point.
THE WITNESS: Up to the entrance gate. Yes,
sir.
THE    COURT:    All    right.   Thank    you.
Cross-examination?


                    -19-
          MS. MONTANEZ: Your Honor, I have, before the
          defense goes, the picture of the school.
          THE COURT: Well, you're going to have to show
          it to --
          MS. MONTANEZ: Yes. We can mark this as
          Government ID 14. (NOTE: Document being
          provided to the witness.)
          Q. I'm showing you what has been marked as
          Government ID No. 14. Do you recognize that
          identification?
          A. Yes. This is school area which is across
          the - from the shopping center.
          Q.   And    why   do   you    recognize   that
          identification?
          A. I go by it every day.
          MS. MONTANEZ: Your Honor, we move into
          evidence Government's Identification No. 14.
          THE COURT: Any objection, Mr. --
          MR. GONZALEZ: No objection, Your Honor.
          THE COURT: Without objection, admitted as
          Government's Exhibit No. 14. Do you want to
          publish it? (NOTE: Document retrieved from the
          witness.)
          BY MS. MONTANEZ:
          Q. I'm showing you what has been marked as
          Government Exhibit number 14. What does this
          picture show?
          A. That's Emmanuel school.
          Q. And is that -- this is the fence you were
          referring to that you measured -- up until the
          point you measured from the Church Chicken
          door (indicating)?
          A. Correct. Yes.

          Relying   exclusively    on    the   school’s   proximity,   the

prosecution took no additional measures to provide grounds to

evince that Guzmán knew, or reasonably should have known, that he

was in a school zone.   Instead, it relied on the closeness factor

as per se probative of Guzmán’s awareness.          Mojica specifically

testified that the school, and its main gate, were visible from

Church’s Chicken.   The record, however, shows that he failed to


                                  -20-
testify that the school’s sign was visible from Church’s Chicken.

In fact, the school sign was first mentioned after the prosecution

rested its case.

          In United States v. Haywood, 363 F.3d 200 (3rd Cir.

2004), the Court of Appeals for the Third Circuit reversed a

conviction under § 922(q)(2)(A) on insufficiency grounds.     As in

the case before us, appellant similarly argued that providing

evidence of a school’s distance was insufficient to establish his

knowledge of a school zone.      The court agreed.     “[T]he only

evidence that the government produced to support this conviction is

that the school is, in fact, within 500 feet of the [locale where

Haywood was found armed].     However, that is not sufficiently

conclusive to enable a reasonable juror to draw the inference that

Haywood knew or should have known of that proximity.” Haywood, 363

F.3d at 209.   We find said ruling to be squarely on point.

          It is likely that the prosecution could have shown that

Guzmán had the knowledge of the nearby school, but it failed to

introduce such evidence at trial.   Juxtaposing the location of the

fast food restaurant with the school is not enough.     Additional

facts were necessary, and could have easily been proven by way of

testimony of police officers who were at the scene, as well as

photographs or a video demonstrating that any reasonable person at

the Church’s Chicken would have indeed become aware of being in a

school zone. The prosecution likewise could have also demonstrated


                               -21-
that to get to the establishment Guzmán inevitably would have

driven by the school.      More so, because Guzmán did not live in the

neighborhood, his awareness had to be readily proven. Cf. Nieves-

Castaño, 480 F.3d at 604 (“Here, three minor children lived with

the defendant, and it would be easy for a jury to conclude that she

knew there were two schools nearby, within or just outside her

housing    project   and   less   than   1000   feet   away,   and   that   she

regularly passed by those schools.              One school was, in fact,

located next to the south entrance of the housing project.”).               In

the case before us the government asked the jury to take a giant

leap of faith, which falls considerably short of sufficiently

proving its case.

            The evidence presented by the government was insufficient

to establish that Guzmán knew or reasonably should have known he

was in a school zone. Consequently, the conviction as to count two

must be vacated.

III.        Conclusion

            For the reasons explained above, we AFFIRM the conviction

on count one, REVERSE the conviction on count two, and REMAND for

resentencing proceedings consistent with this opinion.5

       5
          Guzmán argues that the sentence imposed upon him was both
procedurally and substantively unreasonable. Having remanded the
case for resentencing we need not address these arguments at this
time. During his resentence Guzmán will have an opportunity to
argue for what he understands to be an appropriate sentence. See
United States v. Bryant, 643 F.3d 28, 34 (1st Cir. 2011)(citing
Pepper v. United States, ___ U.S. ___, 131 S.Ct 1229 (2011)).

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