          United States Court of Appeals
                     For the First Circuit

No. 13-2379

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    JUSTO L. BURGOS-FIGUEROA,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Aida M. Delgado-Colón, U.S. District Judge]



                             Before

                  Thompson, Selya and Kayatta,
                         Circuit Judges.



     Anita Hill Adames on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, on brief for appellee.



                        February 13, 2015
            SELYA, Circuit Judge.             This is a single-issue sentencing

appeal.      In    it,       defendant-appellant     Justo   L.    Burgos-Figueroa

assigns error to the district court's imposition of a two-level

sentencing enhancement reflecting the possession of a dangerous

weapon     during        a    drug-trafficking      conspiracy.           See    USSG

§2D1.1(b)(1).

            It is common ground that a sentencing enhancement must be

supported by a preponderance of the evidence. See United States v.

McDonald, 121 F.3d 7, 9 (1st Cir. 1997). The facts undergirding an

enhancement need not be established by direct evidence but, rather,

may be inferred from circumstantial evidence. See United States v.

Cruz, 120 F.3d 1, 4 (1st Cir. 1997) (en banc).               This is such a case

and,     after    careful        consideration,     we    uphold    the    disputed

enhancement.

            A synopsis affords the necessary perspective. On October

26, 2012, a federal grand jury sitting in the District of Puerto

Rico returned a four-count indictment against the appellant.                     The

parties    later     entered       into   a     written   plea     agreement     (the

Agreement).       Pursuant to the Agreement, the appellant pleaded

guilty to count 1 of the indictment (which charged him with

conspiring to distribute substantial quantities of cocaine, heroin,

and marijuana, see 21 U.S.C. §§ 841(a)(1), 846), and the government

agreed to dismiss the remaining counts.                   In the Agreement, the

parties stipulated to a series of guidelines calculations.                      These


                                          -2-
stipulations envisioned only two adjustments to the appellant's

offense level: a two-level enhancement for the appellant's role as

a leader or manager of the conspiracy, see USSG §3B1.1(c), and a

three-level reduction for acceptance of responsibility, see id.

§3E1.1(b).

             Following    customary     practice,    the     probation   office

prepared a presentence investigation report (PSI Report).                    The

Report disclosed that the appellant, along with at least thirty-two

confederates,      had   participated    in    a   sprawling    conspiracy    to

distribute an array of drugs from various drug points in the

Pastillo Ward in Juana Diaz, Puerto Rico.                  The conspiracy was

organized along hierarchical lines, allocating varying degrees of

authority among leaders, drug point owners, enforcers, sellers,

runners, and facilitators.       As a drug point owner, the appellant

supervised other members of the conspiracy and supplied controlled

substances    to   coconspirators     for     distribution     and   sale.    Of

particular pertinence for present purposes, the PSI Report made

pellucid that the conspiracy involved the use of firearms as a

means of protecting the enterprise and its wares against rival

organizations and gangs.       The appellant did not object either to

this factual recital or to any other factual recital explicated in

the PSI Report.

             Based on the facts developed in the PSI Report, the

probation office recommended, inter alia, a two-level enhancement


                                      -3-
for     possessing     firearms    during        the   conspiracy.             See    id.

§2D1.1(b)(1).       At the disposition hearing, the appellant opposed

this recommendation, and the government took no position concerning

it.     The appellant argued that the weapons enhancement did not

apply because the record contained no direct evidence that either

he or any person working under his immediate supervision possessed

any firearms.         The district court rejected this argument.                      The

court found that, as the owner of a drug point and a leader of the

conspiracy, the appellant reasonably could have foreseen that his

coconspirators and subordinates would possess guns.                          The court

proceeded to impose the enhancement, which had the effect of

elevating the appellant's guideline sentencing range to 135-168

months. After considering the appellant's personal characteristics

and the nature and circumstances of the offense of conviction, the

court    sentenced     the   appellant      to   serve      a    168-month     term    of

immurement.     This timely appeal ensued.

             In this venue, the appellant strives to convince us that

it    was   error    for   the   district    court     to       impose   the    weapons

enhancement simply because others carried firearms during the

conspiracy.     We are not persuaded.

             The sentencing guidelines authorize a two-level increase

in a defendant's offense level "[i]f a dangerous weapon (including

a firearm) was possessed" during the course of a drug-trafficking

conspiracy.     Id.    For this enhancement to attach, a defendant need


                                       -4-
not be caught red-handed: the enhancement applies not only where a

defendant himself possessed a firearm but also where it was

reasonably foreseeable to the defendant that firearms would be

possessed       by   others   during     the    conspiracy.         See   id.

§1B1.3(a)(1)(B); United States v. Bianco, 922 F.2d 910, 912 (1st

Cir. 1991).

            In this instance, the sentencing court found that the

appellant reasonably could have foreseen that his coconspirators

and subordinates would possess firearms to protect the drug-

trafficking enterprise.       We review that factual finding for clear

error, see United States v. Quiñones-Medina, 553 F.3d 19, 23 (1st

Cir.   2009),    mindful   that   when   the   record   plausibly   supports

competing inferences, a sentencing court's choice among them cannot

be clearly erroneous, see United States v. Ruiz, 905 F.2d 499, 508

(1st Cir. 1990).       We discern no clear error here.

            A sentencing court may consider facts set forth in

unchallenged portions of the PSI Report as reliable evidence.             See

United States v. Olivero, 552 F.3d 34, 39 (1st Cir. 2009); Cruz,

120 F.3d at 2.       Here, that constellation of facts made plain that

members of the conspiracy regularly carried firearms for the

purpose of protecting drug points (including the appellant's drug

point).     What is more, turf wars raged; and members of the

conspiracy participated from time to time in shoot-outs with rival

gangs.


                                     -5-
                 Given this scenario, the district court could plausibly

infer — as it did — that the appellant, who was a drug point owner

and    a    leader      of    the    conspiracy         whose       duties    included      the

supervision of others, knew of these practices and incidents and

could foresee their continuation.                      See United States v. Vázquez-

Rivera, 470 F.3d 443, 447 (1st Cir. 2006) (finding possession of

firearms reasonably foreseeable where defendant was manager of drug

point and intimately involved in its operations).                              Indeed, with

firefights erupting as his organization waged war with rival gangs,

it beggars credulity to suggest that the appellant was blissfully

unaware that his coconspirators and subordinates carried firearms.

                 This   inference        is    bolstered       by    the     fact    that   the

conspiracy        dealt      in    large      amounts     of    heroin,       cocaine,      and

marijuana.        When large quantities of drugs are involved, firearms

are common tools of the trade.                    See Quiñones-Medina, 553 F.3d at

24; Bianco, 922 F.2d at 912.                  This circumstance lends credence to

the inference that the appellant reasonably could have foreseen the

use of firearms in the operation of the conspiracy.                                 See United

States v. Sostre, 967 F.2d 728, 731-32 (1st Cir. 1992); Bianco, 922

F.2d at 912.

                 In an effort to blunt the force of this reasoning, the

appellant        complains        that   the      district      court      mentioned     three

coconspirators who possessed firearms without making any finding

that       the    appellant        had     any     specific      connection         to   those


                                                 -6-
individuals.    This complaint is unfounded.         Reading the court's

statements in context, we think it clear that the court was simply

making an observation about the appellant's role in the conspiracy

as compared to the roles of other coconspirators.              And in all

events, the court was not required to find that the appellant knew

that any particular coconspirator possessed a firearm at any given

time.   See, e.g., Vázquez-Rivera, 470 F.3d at 447.

           The appellant also suggests that the district court's

determination is somehow undermined by the fact that he was not

charged in the weapons count, see 18 U.S.C. § 924(c)(1)(A), (o),

while other conspirators were so charged. But this is a non-issue:

whether or not the appellant himself was charged with a firearms

violation is beside the point. What counts is that the court below

supportably    determined   that   the    use   of   weapons   during   the

conspiracy was reasonably foreseeable to the appellant. See United

States v. Watts, 519 U.S. 148, 154 (1997) (per curiam) (recognizing

that uncharged conduct can serve as the basis for a sentencing

enhancement); United States v. Smith, 267 F.3d 1154, 1165 (D.C.

Cir. 2001) (same).

           We need go no further.        Although the record contains no

evidence that the appellant himself ever carried a firearm, that

kind of proof is not essential for a weapons enhancement under USSG

§2D1.1(b)(1).   The enhancement may be based on a finding that the

appellant reasonably could have foreseen firearms possession by


                                   -7-
others during the conspiracy.   Such a finding may be premised on

circumstantial evidence, see United States v. Paneto, 661 F.3d 709,

716 (1st Cir. 2011), and the circumstantial evidence here is more

than sufficient to warrant application of the enhancement.



Affirmed.




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