          United States Court of Appeals
                      For the First Circuit


No. 17-1350

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                      WILLIAM PINET-FUENTES,

                      Defendant, Appellant.


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

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


                              Before

                  Thompson, Boudin, and Kayatta,
                          Circuit Judges.


     Javier A. Morales-Ramos, on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and John A. Mathews II, Assistant United States
Attorney, on brief for appellee.


                          April 30, 2018
             BOUDIN, Circuit Judge.            William Pinet-Fuentes (Pinet)

pled guilty in the district court to a charge of illegal possession

of a machine gun, 18 U.S.C. § 922(o), and was sentenced to 30

months in prison to be followed by supervisory release; a further

condition prescribed by the court was that for the first half year,

Pinet   would      be   subject     to   electronic     monitoring      and    curfew

restrictions.       Pinet's appeal contests both the 30-month sentence

and the release conditions.

             Pinet was arrested on September 6, 2016, following an

earlier incident in Yabucoa, Puerto Rico.                    Pinet sat in a front

passenger seat of a car parked at an abandoned gas station at some

distance from the drug transaction that agents perceived him to be

observing.      After a pat down of Pinet revealed that he had two

ammunition magazines in his pocket, he admitted to having a weapon

under the seat; it was a loaded Glock, with an extended magazine,

and was fully automatic.          Pinet later conceded that his weapon had

earlier been in his lap and was placed under the seat as agents

approached the car.

             Section 922(o) makes it unlawful for any person to

possess a "machinegun," with exceptions, such as military and

police, which do not apply to Pinet. "Machinegun," defined through

cross-references,        is   not    limited    to     the    popular   conception

portrayed     in    movies,    but       effectively    includes     any      weapon,

including a Glock, capable of fully automatic fire.                 See 18 U.S.C.


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§ 922(a)(4) (noting that machinegun is defined in 26 U.S.C. §

5845).

          After Pinet pled guilty, the Probation Officer filed a

pre-sentence report.       The ultimate recommended calculation of

Pinet's sentencing range under the guidelines included an upward

adjustment on the premise that the Glock was a stolen firearm.

U.S.S.G. § 2K2.1(b)(4)(A).     Pinet disputed the upward adjustment

at the sentencing hearing, as well as the report's recommendation

that for the first six months of supervised release, he be required

to abide by a curfew and submit to electronic monitoring.

          At sentencing, the district court adopted, over Pinet's

objections, both the stolen weapon enhancement and the recommended

conditions as to curfew and monitoring.        The district court also

imposed   the   30-month   sentence    which   was   within   the   range

recommended in the pre-sentence report.          The enhancement, the

sentence itself, and the supervised release conditions are all

issues pressed on this appeal.    We take them in that order.

          Under the sentencing guidelines, much in the sentence

depends on the score or "level" assigned to the defendant.           The

level is to be adjusted upward by two levels if the defendant's

firearm was stolen. U.S.S.G. § 2K2.1(b)(4)(A). The district court

makes findings as to such matters under a preponderance of the

evidence standard by which the government must establish the

enhancement; but the district court is not limited by conventional


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jury   trial   evidence   rules    and--pertinent   here--may   consider

reliable hearsay not within some settled exception.       United States

v. Rodriguez, 336 F.3d 67, 71 (1st Cir. 2003).

           The government offered as evidence a police report,

recounting an interview with the original owner, stating that the

weapon had been stolen from his vehicle in January 2015 while he

was at church.    Pinet had previously claimed that he had bought

the gun several years prior to the owner's reported loss of it to

theft.   The district court accepted the owner's version of events-

-no motive for him to lie was apparent--while Pinet's self-serving

explanation was convenient but not supported by any other evidence.

           For the owner to lie to a police officer would have been

unwise and, so far as we can tell, Pinet gave no specifics to

support his own version of events.      He says that the owner's claim

that he drove the gun to church is unlikely, but, based on our

frequent review of cases out of Puerto Rico, it is fair to say

guns are common enough.           As between the owner's unimpeached

statement and the story told by a defendant with an obvious motive

to fabricate, the district court could choose to credit the owner.

This disposes of Pinet's enhancement claim without the need to

consider the government's further arguments on this issue.

           Turning to Pinet's attack on the reasonableness of the

sentence, the guideline range--given Pinet's offense level and

criminal history--was 24-30 months’ imprisonment.         Pinet claims


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that the district court either did or may well have relied on an

inference that Pinet, sitting in a vehicle cradling an automatic

weapon and looking toward the scene of a drug transaction, was a

party to the transaction.   The government concedes that it lacked

evidence to convict Pinet for the drug transaction.

          Where there is a controverted matter during sentencing,

the district court is required to rule or find that the matter

will not affect sentencing.   Fed. R. Crim. P. 32(i)(3)(B).   Here,

the government said that it could not prove Pinet was involved in

the transaction beyond a reasonable doubt but said that the

evidence was enough for the judge to find that his involvement was

proved by a preponderance of the evidence. In substance, the court

resolved the matter favorably to Pinet, albeit by indirection.

          When defense counsel pressed the issue, saying it would

be improper for the court to accept that Pinet was part of the

conspiracy being witnessed, the judge replied that he was merely

describing the government's allegation.   Counsel replied, "Well as

long as it's an allegation, and I understand that you will not

take it into consideration, that will be fine."     The judge then

said, "Anything else?" and moved on.

           It is enough to say that the judge appeared to accept

defense counsel's solution; counsel made no further protest; and

nothing said afterwards by the judge suggests that he did hold

Pinet responsible for a new and separate crime.     As it happens,


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the judge could have ruled that Pinet was responsible for this

second crime and relied directly on it in fashioning the sentence.

But the judge in this case sensibly left defense counsel's proposed

resolution to stand, making the dispute one that "will not affect

the matter in sentencing."    Fed. R. Crim. P. 32(i)(3)(B).        That

answers this claim now made on appeal.

           Pinet's final challenge is to the conditions governing

the first six months of the three-year period of supervised

release.   The evident purpose was to limit during a test period

Pinet's freedom of action and provide authorities with a chance to

see whether Pinet was adapting to his new situation, obeying

standard   supervisory   release   conditions    and   staying   out   of

trouble.   The district court did not need to describe the obvious

steps in its thinking process.     United States v. Colón de Jesús,

831 F.3d 39, 44 (1st Cir. 2016).           Here, the district court's

reasoning is inferable from the record.       See id. at 44-45 ("[A]n

unexplained condition of supervised release may be upheld as long

as the basis for the condition can be inferred from the record."

(citing United States v. Garrasteguy, 559 F.3d 34, 42 (1st Cir.

2009))).

           The district court enjoys wide discretion in setting

conditions for supervised release especially where public safety

may be at risk.   United States v. Smith, 436 F.3d 307, 311-12 (1st

Cir. 2006).   Even where a defendant's challenge is preserved at


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trial, a reviewing court commonly defers to the trial judge who is

likely to be familiar with the defendant.    Here the question is

whether the conditions were an abuse of discretion,   United States

v. Perazza-Mercado, 553 F.3d 65, 69 (1st Cir. 2009)(citing United

States v. York, 357 F.3d 14, 19 (1st Cir. 2004)), and we conclude

that no such abuse occurred.

          Nothing prevents Pinet after some experience with the

conditions from seeking their adjustment if he can show that the

conditions are a serious impingement on his ability to get and

keep a job or in other respects impose an unreasonable burden.

          The judgment of the district court is affirmed.




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