United States v. Ramirez-Frechel

• Decision Date: 13 January 2022
• Docket Number: Nos. 19-2010,19-2017,s. 19-2010
• Citation: 23 F.4th 69
• Parties: UNITED STATES of America, Appellee, v. William RAMIREZ-FRECHEL, Jonathan Ramirez-Frechel, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

23 F.4th 69

UNITED STATES of America, Appellee,

v.William RAMIREZ-FRECHEL, Jonathan Ramirez-Frechel, Defendants, Appellants.

Nos. 19-2010

19-2017

United States Court of Appeals, First Circuit.

January 13, 2022

Johnny Rivera-Gonzalez, with Alex Omar Rosa-Ambert on brief, for appellant William Ramirez-Frechel.

Juan F. Matos de Juan on brief for appellant Jonathan Ramirez-Frechel.

Francisco A. Besosa-Martínez, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Kayatta and Barron, Circuit Judges, and Saris,^* District Judge.

SARIS, District Judge.

Two brothers, Jonathan and William Ramirez-Frechel, were convicted of gun and drug crimes and were sentenced to 111 months' imprisonment. They now appeal the district court's denial of their Rule 29 sufficiency of the evidence challenges to their convictions for possession of a firearm in furtherance of a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A). William also contests the district court's admission of certain WhatsApp messages. Finally, they both argue the district court inappropriately applied a four-point enhancement when calculating their guidelines ranges under the United States Sentencing Guidelines ("U.S.S.G."). The government concedes this last point, so long as the sufficiency challenge is denied, but says the enhancement should be applied if the sufficiency challenge is sustained.

I. BACKGROUND FACTS

We begin with the background facts. An undercover Puerto Rico Police Department officer, Agent Pablo García-Irizarry ("García"), arranged to purchase a Glock pistol from a man named "Juanki." On March 16, 2017, García arrived at the arranged meeting place and contacted Juanki, who told García that he was waiting for Jonathan to bring the pistol. When Juanki and Jonathan arrived at the meeting place, Juanki got into García's car and gave him a .45 caliber Glock pistol, a thirteen-round magazine with eleven rounds of ammunition, and a twenty-four-round magazine with sixteen rounds of ammunition. García paid Juanki the arranged price of $1,700.00, and all three then discussed doing business in the future: Jonathan told García that the pistol was his, that he could get ahold of automatic weapons for García, and that he could get marijuana for García (backed up by pictures on his cell phone). He gave García his phone number so they could keep talking.

That evening, Jonathan offered to sell García a 9mm IntraTec (a semi-automatic pistol) for $1,200.00. García told Jonathan he was interested, and they continued speaking. As related by García, they "talked about the IntraTec pistol, the price, and the weed" and planned where to meet to complete the sale of those items (at a package price of $2,100.00). Jonathan and William met García the next day on March 17th and sold him a 9mm IntraTec, one twenty-round magazine, and a bag of marijuana, all of which Jonathan had brought inside the same black bag. García confirmed that the marijuana was the half a pound of marijuana they had agreed he would purchase for $900.00 as part of the agreement. William then told García that he had a thirty-round magazine with twenty-eight rounds of ammunition to sell for the Glock that García had purchased the day before. The brothers initially asked for $100.00 for the magazine but then lowered the price of the marijuana by $100.00 so the total purchase price for the package (the gun, the marijuana, and the magazines) remained $2,100.00.

García kept in touch over cell phone with the brothers over the next few days, and García and William arranged the sale of an American Tactical Rifle, with a thirty-round magazine, and four .223 caliber bullets for $2,500.00. William sent Agent García photos of rifles via WhatsApp text message. The sale was completed on March 23, 2017, and afterwards García continued to correspond with a number that he testified belonged to the brothers (though it was a different number from the one he had previously used to speak with them). Through this number, García and the brothers exchanged WhatsApp messages after the March 23rd transaction in which the brothers offered to sell García more weapons, sent him images of an AK-47 and of marijuana, and offered to sell them to him.

Because of these events, the brothers were each indicted on four counts. In three, they were co-defendants: one count of engaging in the business of dealing firearms without a license for the March 17th sale, 18 U.S.C. §§ 2, 922(a)(1)(A), 923(a), 924(a)(1)(D) ; one count of possession of a firearm in furtherance of a drug trafficking crime for the March 17th sale, 18 U.S.C. §§ 2, 924(c)(1)(A) ; and one count of possession with intent to distribute controlled substances for the March 17th sale, 21 U.S.C. § 841(a)(1). William was also indicted for unauthorized firearm dealing for the March 23rd sale, and Jonathan was indicted for unauthorized firearms dealing for the March 16th sale. See 18 U.S.C. §§ 922(a)(1)(A), 923(a), 924(a)(1)(D).

At trial, the brothers objected to the admission of the WhatsApp messages between García and the brothers after March 23rd on grounds of irrelevance and impermissible character evidence. The district court overruled the objections because it determined the messages established the "context" and "overall scheme that was taking place." The jury convicted the brothers on all counts.

At sentencing, in calculating the brothers' guidelines ranges, the district court applied a four-point enhancement to each because they possessed a firearm in relation to another felony under U.S.S.G. § 2K2.1(b)(6)(B) (2018). Over defendants' objection, the district court imposed a sentence of 111 months' imprisonment for each brother. The brothers filed a joint Rule 29 motion on the count of possession of a firearm in furtherance of a drug trafficking crime; the district court denied the motion, giving rise to this appeal.

II. STANDARD OF REVIEW

Preserved sufficiency challenges are reviewed de novo, "considering the evidence, both direct and circumstantial, in the light most friendly to the verdict." United States v. Bobadilla-Pagan, 747 F.3d 26, 32 (1st Cir. 2014). Appellate courts are not to "re-weigh the evidence or second-guess the jury's credibility determinations." Id. "[I]f the verdict is ‘supported by a plausible rendition of the record,’ we must uphold it." Id. (quoting United States v. Cortés-Cabán, 691 F.3d 1, 16 (1st Cir. 2012) ). Preserved evidentiary challenges are reviewed for abuse of discretion. United States v. Walker, 665 F.3d 212, 228 (1st Cir. 2011). Challenges to the reasonableness of a criminal sentence imposed under the advisory guidelines regime are reviewed for abuse of discretion, with the district court's factfinding reviewed for clear error and its interpretation and application of the sentencing guidelines reviewed de novo. United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). Finally, we may "affirm on any basis apparently in the record," even where the government fails to argue that basis. United States v. Farmer, 988 F.3d 55, 64 n.7 (1st Cir. 2021) (quoting Williams v. United States, 858 F.3d 708, 714 (1st Cir. 2017) ).

III. DISCUSSION

A. SUFFICIENCY OF THE EVIDENCE

The brothers argue their convictions for possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A), were based on insufficient evidence because the IntraTec pistol and the marijuana sales on March 17th were "two parallel but distinct transactions" and the sales were "unrelated." The government argues that the gun sale facilitated the marijuana sale because it was part of a package deal with the marijuana and selling the gun was "good business strategy to attract and retain customers."

There is a mandatory minimum sentence for any person who "during and in relation to any ... drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm."

18 U.S.C. § 924(c)(1)(A). To convict a defendant for possessing a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A), the prosecution must prove beyond a reasonable doubt that the defendant "1) committed a drug trafficking crime; 2) knowingly possessed a firearm; and 3) possessed the firearm in furtherance of the drug trafficking crime." United States v. Pena, 586 F.3d 105, 112 (1st Cir. 2009). Only the third in-furtherance element is contested here.

"The ‘in furtherance of’ element does not have a settled, inelastic, definition." United States v. Marin, 523 F.3d 24, 27 (1st Cir. 2008). To establish that a defendant possessed a firearm "in furtherance of" a drug trafficking crime, the government must show by specific facts "a sufficient nexus between the firearm and the drug crime such that the firearm advances or promotes the drug crime." Pena, 586 F.3d at 113 (citing Marin, 523 F.3d at 27 ). Courts apply a multifactor analysis to determine whether a sufficient nexus between the firearm and the drug crime exists. Id.¹

This case is not the typical conviction for possession of a firearm in furtherance of drug trafficking. For example, in Pena, we held that a sufficient nexus existed where the defendant was carrying the firearm to protect his drugs and drug proceeds. 586 F.3d at 112-13. However, courts have held that the nexus test for the in-furtherance element has been met in other contexts. For example, we have held that "a defendant who exchanges drugs for guns ‘possesses’ the guns ‘in furtherance’ of a drug trafficking crime within the meaning of 18 U.S.C. § 924(c)(1)(A)." United States v. Gurka, 605 F.3d 40, 41 (1st Cir. 2010) (involving a defendant who paid the agent cash and drugs to obtain guns). In a related line of cases, two circuits have held that evidence of selling guns and drugs together in a single transaction could support a jury conviction under 18 U.S.C. § 924(c)(1...