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United States v. Nunez

United States Court of Appeals, First Circuit

October 19, 2016

UNITED STATES OF AMERICA, Appellee,
v.
JOWENKY NUNEZ, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. John A. Woodcock, Jr., U.S. District Judge]

          William S. Maddox on brief for appellant.

          Seth R. Aframe, Assistant United States Attorney, District of New Hampshire, and Emily Gray Rice, United States Attorney, District of New Hampshire, on brief for appellee.

          Before Howard, Chief Judge, Selya and Thompson, Circuit Judges.

          SELYA, Circuit Judge.

         Defendant-appellant Jowenky Nuñez challenges the sentence imposed following his guilty plea to a charge of conspiracy to possess with intent to distribute 28 grams or more of cocaine base (crack cocaine). See 21 U.S.C. §§ 841(a)(1), 846. He raises three discrete claims of error, implicating a sentencing enhancement for his leadership role in the offense, a sentencing enhancement for his possession of a firearm during and in furtherance of a drug-trafficking crime, and the substantive reasonableness of his sentence. Finding these claims of error unpersuasive, we affirm.

         I. BACKGROUND

         As this appeal follows a guilty plea, we draw the facts from the change-of-plea colloquy, the plea agreement, the uncontested portions of the second revised presentence investigation report (PSI Report), and the transcript of the two-day disposition hearing. See United States v. Almonte-Nuñez, 771 F.3d 84, 86 (1st Cir. 2014).

         The appellant was arrested on February 2, 2012, and charged with conspiracy to distribute and possess with intent to distribute 28 grams or more of cocaine base, as well as possession of a firearm in furtherance of a drug-trafficking offense. These charges arose out of a long and thorough investigation, spearheaded by the Drug Enforcement Administration, into drug-trafficking activities in Bangor, Maine. The appellant originally maintained his innocence but - on January 18, 2013 - he pleaded guilty to the conspiracy charge.[1]

         At a disposition hearing spread over two separate days, the appellant identified three purported inaccuracies in the PSI Report. First, he contested the finding that he served as a manager of the enterprise and, consequently, he objected to the proposed aggravating role enhancement. Second, he contested the finding that he carried a firearm with him to make drug deliveries and, consequently, objected to the proposed two-level enhancement for possession of a firearm in the course of the crime of conviction. Third, he contested the accuracy of the PSI Report's drug-quantity calculation.

         The district court acknowledged and discussed each objection. In rejecting the appellant's first objection, the court reviewed testimony from several coconspirators and pointed specifically to uncontradicted testimony from Dawlin Cabrera (the ringleader of the conspiracy) to the effect that the appellant was the person who kept him updated on sales and receipts.

         Turning to the weapons enhancement, the court agreed with the appellant that the government had not sufficiently tied the gun mentioned in the PSI Report to the appellant and the crime of conviction. However, the court accepted the government's proffer of the appellant's own testimony during a coconspirator's trial, indicating that he (the appellant) possessed a different gun while conducting the conspiracy's business. This newly introduced evidence, the court concluded, justified the weapons enhancement.

         The appellant enjoyed more success with his final plaint. The district court accepted his (somewhat reduced) drug-quantity calculation.

         When all was said and done, the court set the appellant's base offense level at 32, see USSG §2D1.1(c)(4); applied the two-level weapons enhancement, see id. §2D1.1(b)(1); applied the three-level role-in-the-offense enhancement, see id. §3B1.1(b); and subtracted three levels for acceptance of responsibility, see id. ยง3E1.1. These findings yielded a total offense level of 34. The appellant's past record placed him in ...


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