                Not For Publication in West's Federal Reporter

           United States Court of Appeals
                        For the First Circuit

No. 16-1235

                      UNITED STATES OF AMERICA,

                                Appellee,

                                     v.

                    SANTIAGO MARINO REYES-LARA,

                        Defendant, Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW HAMPSHIRE

           [Hon. Paul J. Barbadoro, U.S. District Judge]


                                  Before

                       Howard, Chief Judge,
                Torruella and Dyk,* Circuit Judges.


     John F. Cicilline, on brief for appellant.
     Seth R. Aframe, Assistant United States Attorney, and Emily
Gray Rice, United States Attorney, on brief for appellee.



                           December 20, 2016




*   Of the Federal Circuit, sitting by designation.
            TORRUELLA, Circuit Judge.       Defendant Santiago Marino

Reyes-Lara ("Reyes") pleaded guilty to possession with the intent

to distribute controlled substances.       He appeals his sentence of

eighty-four months' imprisonment, arguing that the district court

improperly calculated his recommended sentence under the United

States Sentencing Guidelines (the "Guidelines").       We affirm.

                             I.   BACKGROUND

A.   Factual Background

            On April 22, 2014, federal agents obtained an arrest

warrant for Reyes and a search warrant for a Nissan Xterra (the

"Xterra")   that    Reyes   frequently   drove.    That   evening,   New

Hampshire police officers stopped Reyes, who was driving the

Xterra.   Officers found 22.3 grams of crack, 6.5 grams of cocaine,

and 6.5 grams of heroin in the Xterra.         They also found $795 in

cash on Héctor Palancos, who was a passenger in the Xterra at the

time of the stop.

            On April 23, 2014, agents executed a search warrant for

95 Marble Street, Lawrence, Massachusetts ("95 Marble"), a house

that Reyes's girlfriend leased.      In a closet in one bedroom of 95

Marble, which "appeared to be a 'religious' type room," agents

found a safe containing 34.8 grams of crack, 208.9 grams of

cocaine, and 32.9 grams of heroin and a loaded firearm.      The master

bedroom "appeared from clothing and other items to be occupied by


                                   -2-
a male and a female," and the third bedroom "appeared to be

occupied by young children."

          There were two adults and two children at 95 Marble when

agents executed the warrant.   One of the adults told agents that

she was babysitting the two children, but she did not know the

children's mother.   The other adult subsequently told defense

counsel that he had been residing at 95 Marble.

          Agents found various items at 95 Marble that indicated

Reyes was an occupant:

     1.   The same three types of drugs found in the Xterra.

     2.   A Notice of Residency and probation reporting forms in
          the name of Jean Carlos Sotomayor-Venerio, an alias
          frequently used by Reyes.

     3.   A National Grid electricity bill in the name of Leonardo
          Colón-Montez.    Reyes's landlord 1 identified Reyes as
          "Leonardo Colón-Montez" from a photograph and provided
          a phone number for Reyes that was also "associated with
          the National Grid account for 95 Marble."

     4.   A vehicle registration in the name of Herbert Ralph.
          Reyes stipulated that officers would testify that "Mr.
          Ralph stated that he registered the [vehicle] for
          [Reyes] in exchange for narcotics."

          In addition to the items found at 95 Marble, officers

had observed Reyes in his Xterra in "the area of" 95 Marble on

February 12, 2014.   On April 10, 2014, officers again observed



1  Reyes claimed that he lived at 8 Rollins Street, Lawrence,
Massachusetts. Elias Azzi owned 8 Rollins Street, which he leased
to Reyes's sister.


                               -3-
Reyes near 95 Marble.            Later that day, while still driving the

Xterra, Reyes was videotaped selling controlled substances to a

confidential informant.            Similarly, a tracking device on the

Xterra showed that it stopped at 95 Marble on April 22, 2014; Reyes

was arrested later that day while driving the vehicle.                      Reyes's

"on and off" girlfriend also "stated that she 'sometimes' stayed

with [Reyes] at 95 Marble."            Reyes's girlfriend signed a lease for

95 Marble, and she is the mother of two children with Reyes.

Further, the government identified two Facebook pictures, one from

July 29, 2013 and one from April 19, 2014, showing Reyes at 95

Marble.

             After his arrest, Reyes consistently identified himself

as   Jean   Carlos      Sotomayor-Venerio,      including    to     the   probation

officer who drafted his presentence report and the district court.

As of the time of his objection to the presentence report, Reyes

still    "maintained      that    his   true    identity    [was]    Jean    Carlos

Sotomayor-Venerio," although he abandoned that on appeal.

B.      Procedural History

             On   May    22,   2015,    Reyes   pleaded    guilty    to    unlawful

possession with the intent to distribute heroin and crack, in

violation of 21 U.S.C. § 841(a)(1).                  His presentence report

included the drugs seized at 95 Marble in calculating Reyes's base

offense level as 24. It also included three two-level enhancements


                                         -4-
for the firearm found at 95 Marble, for Reyes's managerial role,

and for obstruction of justice for providing a false name to the

probation    officer,   and   it   denied   a   three-level   credit   for

acceptance of responsibility because Reyes had obstructed justice.

Reyes objected to the inclusion of the drugs seized at 95 Marble,

the three enhancements, and the denial of credit for acceptance of

responsibility.

             The district court agreed that Reyes was not subject to

an enhancement for having a managerial role, but it denied Reyes's

other objections.       First, it determined that it was "satisfied

beyond a reasonable doubt" that Reyes possessed the drugs and

firearm at 95 Marble.         It found that (1) Reyes "was engaged

actively in the drug-dealing business," (2) 95 Marble was his

girlfriend's house, (3) the Xterra stopped at 95 Marble on the day

that Reyes was arrested while driving the Xterra, (4) he was paying

the electric bill for 95 Marble using a false name, and (5) the

car title and probation forms showed that Reyes "was staying at

that apartment and was treating it as his apartment."

             The district court also ruled that it was "clear that

[Reyes was] misrepresenting his identity and continue[d] to do

so," but it stated that a five-level increase "may be excessive,"

and that it would consider that "when we get to the variance

question."     The district court then calculated "a total offense


                                    -5-
level 28, criminal history category III," resulting in a Guidelines

recommendation of 97 to 121 months.    The district court ultimately

imposed a sentence of 84 months.

           Reyes timely appealed.

                           II.   ANALYSIS

           Reyes argues that the evidence does not support the

district court's finding that he had constructive possession over

the drugs and pistol found at 95 Marble and that his use of a false

name during presentencing proceedings was not material.         "We

review the district court's . . . factual findings for clear

error."   United States v. Tavares, 705 F.3d 4, 24 (1st Cir. 2013)

(quoting United States v. Cortés–Cabán, 691 F.3d 1, 26 (1st Cir.

2012)).

A.   The District Court Did Not Commit Clear Error by Finding that
     Reyes Had Constructive Possession of the Drugs and Gun

           Before turning to Reyes's factual arguments, we briefly

address the standard of proof the government must meet for a

sentence enhancement.   Citing Apprendi v. New Jersey, 530 U.S. 466

(2000), Reyes argues that "drug quantity . . . needs to be

established by proof beyond a reasonable doubt."2   Reyes is wrong.

"[O]nce convicted, a defendant has no right under the Due Process


2  At the sentencing hearing, the district court stated that it
was "satisfied beyond a reasonable doubt" that Reyes possessed the
drugs at 95 Marble.


                                 -6-
Clause to have his sentencing determination be confined to facts

proved beyond a reasonable doubt."          United States v. Lombard, 72

F.3d 170, 175 (1st Cir. 1995).           "A sentencing court's operative

factfinding is generally subject only to a 'preponderance of the

evidence' standard."       Id. at 176.    Apprendi applies only to facts

"that increase[] the penalty for a crime beyond the prescribed

statutory maximum."    530 U.S. at 490.        In fact, it made clear that

judges   may   "exercise    discretion    --   taking   into   consideration

various factors relating both to offense and offender -- in

imposing a judgment within the range prescribed by statute."            Id.

at 481 (emphasis removed).       Here, the district court found facts

related to its Guidelines application -- an exercise in discretion

-- and its sentence was well below the twenty-year maximum sentence

of 21 U.S.C. § 841(b)(1)(C).      Thus, the district court only needed

to find by a preponderance of the evidence that Reyes possessed

the drugs for Guidelines purposes.         See United States v. Ramírez-

Negrón, 751 F.3d 42, 49 (1st Cir. 2014).

           We now turn to the district court's findings.               "The

location of drugs or firearms in a defendant's home or car is a

common basis for attributing possession to the defendant . . .

even if the residence or room is shared by others."            United States

v. Zavala Maldonado, 23 F.3d 4, 7 (1st Cir. 1994).             Constructive

possession is not "automatic" in these cases, but it can permit a


                                    -7-
finding of possession if the contraband is "in a domain specially

accessible to the defendant" and where the defendant's knowledge

can be inferred. Id. Prior drug possession in similar circumstances

can be evidence of possession.          See United States v. Rosado, 273

F. App'x 1, 3 (1st Cir. 2008) (unpublished) (listing that the

defendant "was previously involved in drug dealing" as a factor in

finding constructive possession of contraband).

           Here,     the    district    court     determined       that   Reyes's

probation form and car title, both found at 95 Marble, were "the

kind of documents you would find" only if Reyes "control[led] the

place."   The fact that Reyes was paying the electricity bill and

his girlfriend leased 95 Marble indicated that it was Reyes, and

not some other person, who stored drugs there.               In addition, the

evidence linked Reyes to drugs on two separate occasions after he

had   stopped   at   95    Marble:     first    when   he   sold    drugs   to   a

confidential informant and again when he was arrested in the

Xterra.   Finally, officers found the same three types of drugs at

95 Marble that they found in the Xterra when they arrested Reyes.

Although these are common drugs, the fact that all three were

present in both the Xterra and at 95 Marble, and that Reyes stopped

at 95 Marble the same day he was arrested, is evidence that Reyes

possessed the drugs at both places.             The pistol was found in the

same closet as the drugs, and there is no indication that it


                                       -8-
belonged to any other person.        Thus, the district court did not

clearly err by finding by a preponderance of the evidence that

Reyes constructively possessed the drugs and pistol seized at 95

Marble.

B.   The District Court Did Not Commit Plain Error by Finding that
     Reyes Obstructed Justice by Using a False Name

            Reyes argues that giving the name Jean Carlos Sotomayor-

Venerio to the probation officer was not material because his prior

convictions were under that name -- and so it could not have

affected his sentencing -- and he had been using Jean Carlos

Sotomayor-Venerio for years and so was not giving a false name.

In fact, he asserts that, if he had given the name Reyes, the

"probation [officer] would not have been able to add two points to

his criminal history" because the probation officer would not have

known that Reyes was on probation.            Reyes did not make these

arguments in the district court, and so we review them only for

plain error.   United States v. Correa-Osorio, 784 F.3d 11, 17 (1st

Cir. 2015).    We will therefore reverse only if the district court

made "(1) an error, (2) that is clear or obvious, (3) which affects

his substantial rights (i.e., the error made him worse off), and

which (4) seriously impugns the fairness, integrity, or public

reputation of the proceeding."      Id. at 18.

            Reyes does not dispute that he gave a false name to the

probation    officer   and   the   district   court.    The   Sentencing

                                    -9-
Guidelines include "providing materially false information to a

judge . . . [or] to a probation officer in respect to a presentence

or other investigation for the court" as examples of obstruction.

U.S.S.G. § 3C1.1 cmt. n.4(F) & (H).3    And Reyes has not cited a

single case in which a defendant provided a false name to a

probation officer or a district court and was not subject to an

obstruction of justice enhancement under U.S.S.G. § 3C1.1.     The

district court found that although the probation officer learned

that Reyes was using a false name "relatively quickly," Reyes "did

obstruct justice."    Absent contrary precedent, that finding was

not a clear or obvious error.

                         III.   CONCLUSION

          For the foregoing reasons, we affirm Reyes's sentence.

          Affirmed.




3  Application Note 5, on which Reyes relies, applies to statements
made "at arrest" or "to law enforcement officers," U.S.S.G. § 3C1.1
cmt. n.5(A) & (B), and so it does not apply here.


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