FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
A. Morales-Ramos, on brief for appellant.
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.
Thompson, Boudin, and Kayatta, Circuit Judges.
BOUDIN, CIRCUIT JUDGE.
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.
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.
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. § 922(a)(4)
(noting that machinegun is defined in 26 U.S.C. § 5845).
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.
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.
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 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).
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.
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.
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 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 ...