
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1904                                    UNITED STATES,                                      Appellee,                                          v.                                DOMINGO REYES-MERCADO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Jose A. Fuentes Agostini  with whom Dominguez & Totti was on brief            ________________________            _________________        for appellant.            Jorge  E.  Vega-Pacheco, Assistant  United  States  Attorney, with            _______________________        whom  Guillermo  Gill,  United  States  Attorney,  was  on  brief  for              _______________        appellee.                                 ____________________                                    April 28, 1994                                 ____________________                      STAHL, Circuit Judge.   After  being convicted  and                      STAHL, Circuit Judge.                             _____________            sentenced  on various drug  and firearms  charges, defendant-            appellant  Domingo  Reyes-Mercado  argues that  the  district            court erred in 1) denying his motion to suppress evidence; 2)            determining  that  the  evidence   presented  at  trial   was            sufficient to convict him; and 3) ruling that it had no power            to  credit  him  for  time  served  under  home  confinement.            Finding no error, we affirm.                                          I.                                          I.                                          __                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS                       ________________________________________                      For  purposes  of  defendant's  challenge   to  the            sufficiency of the evidence,  we review the facts in  a light            most favorable  to the government.  United  States v. Torres-                                                ______________    _______            Maldonado, 14 F.3d 95, 98 (1st Cir. 1994).            _________                      Sometime   in  mid-June   of  1992   in  Cartagena,            Colombia,  a  confidential government  informant (hereinafter            "CI") working on a  ship was provided with four  kilograms of            cocaine and  instructed to contact defendant  upon the ship's            arrival  in Ponce, Puerto Rico.  On  arrival in Ponce on June            17,  1992, the  CI  telephoned defendant.   With  codefendant            Rolando  Lopez-Maysonet  acting  as   interpreter,  defendant            agreed to  buy four kilograms of  cocaine from the CI.    The            purchase was arranged to  take place that same day,  June 17,            1992, at  a shopping center  phone booth.   Upon  defendant's            arrival  in a  black Nissan  Pathfinder, the  CI  entered the                                         -2-                                          2            vehicle and sold four  kilograms of cocaine to  defendant and            Lopez-Maysonet.   On  a signal  from  the CI,  United  States            Customs  Service   agents  surrounded  the   vehicle,  placed            defendant  and Lopez-Maysonet  under arrest, and  conducted a            search of the Pathfinder's interior.                        In  the  search,  the  agents  found  two  handbags            containing money,  two cellular telephones, and  one carry-on            bag  containing  four  kilograms  of cocaine.    Pursuant  to            established procedures, United States Customs Agent Jose Ruiz            and Marine Enforcement Officer Radames Sanchez then impounded            the  car  and conducted  an  inventory  search.   During  the            inventory  search of  the vehicle,  the agents  found in  the            glove box a  loaded Ruger pistol  with an obliterated  serial            number.                      On  June 29, 1992, just days  after his arrest, the            district  court  ordered,  inter  alia,  that pending  trial,                                       _____  ____            defendant  remain  confined  at  home  wearing  an electronic            surveillance  bracelet.   Shortly  thereafter, defendant  was            charged  in  a five-count  indictment.   Three of  the counts            related  solely to drug violations.  Defendant pled guilty to            these  three  counts.1    The remaining  two  counts  charged                                            ____________________            1.  The three  drug counts  stated that defendant  and Lopez-            Maysonet  1) conspired to import  in excess of  4500 grams of            cocaine in violation of 21 U.S.C.    952(a), 960, and 963; 2)            aided  and abetted each other in possessing with an intent to            distribute in excess of 4500 grams of cocaine in violation of            18 U.S.C.    2, and 21  U.S.C.   841(a)(1); and  3) aided and            abetted each other  in the use  of a communication  facility,                                         -3-                                          3            defendant  with  1) carrying  a  firearm in  relation  to the            commission  of a  drug offense  in violation  of 18  U.S.C.              924(c)(1)2;  and  2)  possession  of a  firearm  having  been            transported in interstate  commerce and whose  manufacturer's            serial number had been obliterated  in violation of 18 U.S.C.              922(k)3.                      Defendant pled not guilty to both firearms charges.            Prior  to trial, a  suppression hearing  took place  before a            magistrate judge at which defendant argued that the gun found            in  the   inventory  search  should  be   suppressed.    More                                            ____________________            i.e., a telephone, for causing or facilitating the possession            with intent to distribute cocaine,  in violation of 18 U.S.C.              2 and 21 U.S.C.   843(b).            2.   Section 924(c)(1) provides in relevant part:                      Whoever,  during and  in relation  to any                      crime  of  violence  or drug  trafficking                      crime  (including a crime  of violence or                      drug trafficking crime which provides for                      an  enhanced  punishment if  committed by                      the use  of a deadly or  dangerous weapon                      or device) for which he may be prosecuted                      in a court of  the United States, uses or                      carries a firearm, shall, in  addition to                      the punishment provided for such crime or                      violence  or  drug trafficking  crime, be                      sentenced to imprisonment for five years.            3.  Section 922(k) provides in relevant part:                      It shall be unlawful for any person . . .                      to possess  or receive any  firearm which                      has had the importer's  or manufacturer's                      serial  number  removed, obliterated,  or                      altered  and  has,   at  any  time,  been                      shipped or transported  in interstate  or                      foreign commerce.                                         -4-                                          4            specifically, defendant argued that the government's evidence            conflicted  as to whether the gun was first discovered in the            inventory search,  or whether it  had been discovered  at the            scene  of  the  arrest.     Seizing  on  this  inconsistency,            defendant argued that  the gun had, in  fact, been discovered            at  the time of the arrest, and, further, that this discovery            of  the  gun was  unlawful.   The  magistrate  considered the            government's  conflicting evidence,  determined that  the gun            had  been lawfully  discovered in  the inventory  search, and            denied  the motion to suppress.   At trial,  a jury convicted            defendant on both firearms counts, and this appeal followed.                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      Defendant argues  that 1) the lower  court erred in            denying  defendant's  motion  to  suppress the  gun;  2)  the            evidence  presented  at  trial  was  insufficient to  convict            defendant on  the  weapons charges;  and 3)  the lower  court            erred  in determining  that  it had  no  power to  grant  the            appellant  credit  for  the  time  he   had  served  in  home            confinement.  We address these arguments in turn.            A.  Suppression of the Gun            __________________________                      In   arguing   that  the   gun  should   have  been            suppressed, defendant  begins  by challenging  the  facts  as            found by the magistrate judge at the suppression hearing.  In            essence, defendant argues  that the gun was not discovered in                                         -5-                                          5            the inventory search,  but rather that  it was discovered  at            the scene  of the arrest in  an unlawful search  of the glove            compartment.                        Where the lower court judge sits as the factfinder,            we uphold findings of fact unless they are clearly erroneous.            United  States v. Mancini, 8  F.3d 104, 107  (1st Cir. 1993).            ______________    _______            Moreover,  where  there  are  two permissible  views  of  the            evidence, the interpretation assigned by the lower court must            be adopted.  Williams v.  Poulos, 11 F.3d 271, 278 (1st  Cir.                         ________     ______            1993).                      In   the   instant   case,   Sanchez,   the  Marine            Enforcement  Officer present  at the  arrest, testified  at a            preliminary  detention   hearing  that  the  gun   was  first            discovered at the scene  of the arrest.  Customs  Agent Ruiz,            on  the other  hand,  who was  also  present at  the  arrest,            testified  at the  suppression  hearing that  the weapon  was            seized from the Pathfinder during the inventory  search.  The            magistrate  judge,  apparently  crediting  Ruiz's  testimony,            expressly  found  that the  gun  was first  found  during the            inventory search.   Defendant cites nothing in the  record to            indicate  that  this  credibility determination  was  clearly            erroneous.   Accordingly,  we  find  no  error in  the  lower            court's determination that the  gun was discovered during the            inventory search.  Moreover, defendant concedes the  validity            of  the inventory search.   Cf. United States  v. Zapata, No.                                        ___ _____________     ______                                         -6-                                          6            93-1349, slip. op. at  16 (1st Cir. March 24,  1994) ("Courts            have regularly approved inventory searches of impounded motor            vehicles despite the absence of  probable cause.").  Thus, we            find no  error in the district court's  denial of defendant's            motion to suppress the gun.4            B.  Sufficiency of the Evidence            _______________________________                      When   reviewing  a  sufficiency  of  the  evidence            challenge,  we  examine  the   evidence  in  the  light  most            favorable to  the government  and affirm convictions  where a            rational  juror could  have found  guilt beyond  a reasonable            doubt.  United States  v. Jadusingh, 12 F.3d 1162,  1168 (1st                    _____________     _________            Cir. 1994).                        Under section 924(c)(1),  the government must  show            that  the defendant used one  or more firearms  during and in            relation to  a drug trafficking  offense.   United States  v.                                                        _____________            Hatfield, 918 F.2d  987, 996 (1st  Cir. 1990), cert.  denied,            ________                                       _____  ______            111  S.  Ct.  2062 (1991).    Use,  as  described in  section                                            ____________________            4.  We  note additionally  that  even if  the  gun was  first            discovered  at the scene of  the arrest, the  evidence in the            record before us shows that a search of the glove compartment            incident  to defendant's arrest would have  been lawful.  See                                                                      ___            New York v. Belton, 453 U.S.  454, 460-61 & n.4 (holding that            ________    ______            after policeman  has made  a lawful  custodial arrest of  the            occupant  of  an automobile,  he  may,  as a  contemporaneous            incident  of  that  arrest,  "examine  the  contents  of  any            containers," including glove  compartments, found within  the            passenger  compartment).    Moreover,  given  that  defendant            concedes  the validity  of the  inventory search,  it appears            that the suppression would  be inappropriate, inasmuch as the            gun  would inevitably  have been  lawfully discovered.   See,                                                                     ___            e.g.,  Zapata, slip  op. at  15-17 (discussing  generally the            ____   ______            doctrine of inevitable discovery).                                         -7-                                          7            924(c)(1), calls  for something more than  "possession."  See                                                                      ___            United  States v. McFadden, 13 F.3d 463, 465 (1st Cir. 1994).            ______________    ________            While  a   weapon  need  not  be   brandished,  displayed  or            discharged  in order  to sustain  a conviction  under section            924(c)(1), there must be  some facilitative nexus between the            weapon and  the criminal activity.   See Torres-Maldonado, 14                                                 ___ ________________            F.3d  at 102; United States v. Castro-Lara, 970 F.2d 976, 983                          _____________    ___________            (1st Cir. 1992), cert. denied, 113 S. Ct. 2935 (1993); United                             _____ ______                          ______            States v. Plummer, 964  F.2d 1251, 1253-55 (1st Cir.),  cert.            ______    _______                                       _____            denied  113 S.  Ct.  350 (1992).    "[A] conviction  will  be            ______            sustained under [section 924(c)] if the possessor of a weapon            intended  to have  it available  for possible  use during  or            immediately following  the transaction, or if  it facilitated            the transaction by lending courage to the possessor."  Id. at                                                                   ___            1254 (quoting United States v. Payero, 888 F.2d 928, 929 (1st                          _____________    ______            Cir. 1989)).  "[U]ltimately, whether or not  the gun[] helped            [a defendant] commit the  drug crime is a matter for  a jury,            applying   common-sense   theories   of  human   nature   and            causation."  McFadden, 13 F.3d at  466 (quoting United States                         ________                           _____________            v. Wilkinson, 926 F.2d  22, 26 (1st Cir.), cert.  denied, 111            ____________                               _____  ______            S. Ct. 2813 (1991)).                      When  viewed in  the  light most  favorable to  the            government, the  evidence shows that a  reasonable jury could            find beyond a reasonable doubt that defendant used the gun in            connection  with a drug crime  as required by section 924(c).                                         -8-                                          8            First,  the  Pathfinder belonged  to  and  was registered  to            defendant.   Second, throughout the consummation  of the drug            deal, which took place inside  the Pathfinder, the loaded gun            was located in the glove compartment directly in front of the            passenger seat where defendant was seated.  Finally, the jury            heard ample  testimony from Agent Ruiz  regarding the details            of defendant's involvement in  the cocaine transaction.  This            testimony described  the plan devised in  Colombia to deliver            the cocaine to  defendant in  Ponce, Puerto Rico.   Based  on            this  evidence,  the jury  could  conclude that  the  gun was            present  by design, rather than happenstance, and that it was            used by  defendant in  connection with  the drug  purchase as            required by section 924(c).5            C.     The  Sentencing  Court's  Ability   to  Consider  Home            _____________________________________________________________            Confinement Toward a Reduction in Sentence            __________________________________________                      Finally,  defendant  contends  that the  sentencing            court erred by  concluding that it had no power  to grant him            credit  for the time he  served under home  confinement.6  We            disagree.                      Under 18 U.S.C.   3585, "[a] defendant will receive            credit  towards the sentence of  imprisonment for any time he                                            ____________________            5.  The very evidence supporting defendant's conviction under            section  924(c)  also supports  his conviction  under section            922(k).            6.  The record  reflects that defendant eventually  broke the            conditions  of   his  home   confinement  and  that   he  was            subsequently incarcerated pending trial.                                         -9-                                          9            has  spent in official custody prior to the date the sentence            commences."   In a  similar case, United  States v. Zackular,                                              ______________    ________            945 F.2d  423, 425  (1st Cir.  1991), we  stated, "We  do not            believe  that the  official detention requirement  of section            3585 can be  fulfilled by  home confinement."   Id.   Rather,                                                            __            "the fact that home confinement is included as a condition of            probation,  but  not  as   a  substitute  for  incarceration,            persuasively   indicates   that   Congress  considered   home            confinement not to be the equivalent of immurement, ergo, not            to come within the ambit of `official detention.'"  Id.7                                                                __                      Therefore,  under  the  clear  precedent   of  this            circuit, the  district court  properly concluded that  it did            not  have the power to credit defendant for time served under            home confinement.                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For the foregoing  reasons, defendant's  conviction            and sentence are                                            ____________________            7.  Since we decided Zackular, the Supreme Court has  held in                                 ________            United States v. Wilson, 112 S. Ct. 1351 (1992), that, in the            _____________    ______            first instance, credit under  section 3585 must be calculated            by the Attorney General.  Id. at 1354.  As far  as the record                                      ___            before us reflects, no such calculation was requested or made            here.   Despite defendant's failure to exhaust administrative            remedies, we  reaffirm that part of Zackular which holds that                                                ________            pretrial  home  confinement  may   not  be  credited   toward            "official detention."  Cf. Fraley v.  United States Bureau of                                   ___ ______     _______________________            Prisons, 1  F.3d 924, 925-26  (9th Cir.  1993) (holding  that            _______            home  confinement   may  not  be   credited  toward  official            detention).                                         -10-                                          10                      Affirmed.                      ________                                         -11-                                          11
