United States v. Tanco-Baez, 16-1322

• Decision Date: 04 November 2019
• Docket Number: No. 16-1323,No. 16-1322, No. 16-1563,16-1322
• Parties: UNITED STATES of America, Appellee, v. Juan TANCO-BAEZ, Defendant, Appellant. United States of America, Appellee, v. José Cepeda-Martínez, Defendant, Appellant. United States of America, Appellee, v. Peter Rosario-Serrano, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

942 F.3d 7

UNITED STATES of America, Appellee,

v.Juan TANCO-BAEZ, Defendant, Appellant.

United States of America, Appellee,

v.José Cepeda-Martínez, Defendant, Appellant.

United States of America, Appellee,

v.Peter Rosario-Serrano, Defendant, Appellant.

No. 16-1322

No. 16-1323

No. 16-1563

United States Court of Appeals, First Circuit.

November 4, 2019

Lydia Lizarribar-Masini, San Juan, PR, for appellant Tanco-Baez.

Eleonora C. Marranzini, Assistant Federal Public Defender, with whom Eric A. Vos, San Juan, PR, Federal Public Defender, and Vivianne M. Marrero-Torres, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant Cepeda-Martínez.

Jennie Mariel Espada, for appellant Rosario-Serrano.

Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, San Juan, PR, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Howard, Chief Judge, Kayatta and Barron, Circuit Judges.

BARRON, Circuit Judge.

Juan Tanco-Baez ("Tanco"), José Cepeda-Martínez ("Cepeda"), and Peter Rosario-Serrano ("Rosario") were indicted in the United States District Court for the District of Puerto Rico on three counts of federal firearms charges arising out of a drive-by shooting. Cepeda and Rosario each challenge their conviction on one of those counts and Tanco challenges his conviction on two of those counts, while Tanco and Cepeda also challenge their sentences for their convictions on those counts. We reject all three co-defendants’ challenges to their convictions, except for Cepeda’s challenge to his conviction on one of the counts, which we agree is not supported by sufficient evidence and must be reversed. We affirm Tanco’s sentence, but we vacate and remand Cepeda’s sentence not only for the conviction that we reverse but also for the one that we affirm, as we conclude that our reversal of his other conviction requires that result.

I.

The following facts are not in dispute. On the morning of March 26, 2014, Tanco, Cepeda, and Rosario participated in a drive-by shooting on the Román Baldorioty de Castro expressway in Carolina, Puerto Rico. A witness reported seeing a high-speed car chase that involved a blue Toyota Yaris, a gray Toyota Yaris, and a wine-colored Jeep Cherokee. The chase ended when the two Toyotas crashed under a bridge. The Jeep remained at a close distance. A witness then heard two rounds of rapid gunfire. Thereafter, the three co-defendants fled the scene in the Jeep Cherokee.

Puerto Rico Police Department officers pursued the Jeep until it eventually stopped near a pedestrian bridge in the nearby city of San Juan. At that point, the three defendants abandoned the vehicle and fled on foot across the bridge to a housing project.

Cepeda was arrested almost immediately in the third-floor hallway of one of the buildings in the housing project. Law enforcement officers seized a pistol magazine that was found nearby. Officers also found and seized a bag of marijuana hidden inside Cepeda’s shoe.

Tanco and Rosario were apprehended in an apartment within Building 46 of the housing project. The officers then searched the apartment. They found a pistol magazine under a table, a pistol frame inside a laundry bag, and two pistol magazines under a bed. The slide and barrel of the pistol found in the laundry bag were later found on either side of Building 46.

Officers also found two Glock pistols beside the Jeep Cherokee -- a model 17 and a model 27. The latter model had been modified to fire as a machinegun. Multiple shell casings from the scene of the shooting matched the three firearms seized in Building 46 and near the Jeep Cherokee.

On September 17, 2014, Tanco, Cepeda, and Rosario were indicted in the District of Puerto Rico as co-defendants on a number of federal firearms charges. Cepeda was charged with possession of firearms and ammunition by an unlawful user or addict of a controlled substance, in violation of 18 U.S.C. § 922(g)(3) (Count One); Tanco was charged with being a convicted felon in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count Two); Tanco, Cepeda, and Rosario were each charged with aiding and abetting each other in the illegal possession of a machinegun, in violation of 18 U.S.C. § 922(o) (Count Three).

The three defendants proceeded to an eight-day jury trial in late June 2015. At trial, an expert testified that Tanco’s DNA was present on the steering wheel and stick shift of the gray Yaris and a cigarette butt found in the driver’s side of that car. The expert also testified that Rosario’s DNA was found on the steering wheel of the Jeep.

A law enforcement agent testified at the trial as well. He stated through an interpreter that Cepeda admitted to him in a post-arrest interview that he had gone into a vehicle to smoke marijuana that day, that he "smoked on a daily basis and that it had been a long time since he had started," and that he possessed the machinegun on the day of the events.

The government did not introduce into evidence a written or recorded statement by Cepeda. Nor did the government introduce into evidence any notes that memorialized the law enforcement agent’s interview with Cepeda, which had taken place over a year before trial.

The jury returned guilty verdicts against each of the defendants on all of the counts that each faced. Cepeda filed a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29 on Counts One and Three, Tanco filed a Rule 29 motion on Counts Two and Three, and Rosario filed a Rule 29 motion on Count Three. The government opposed each Rule 29 motion, and the District Court denied them all.

On March 3, 2016, the District Court held sentencing hearings for both Tanco and Cepeda. Cepeda was sentenced to 120 months of imprisonment for his convictions on Counts One and Three, to be served concurrently with one another. Tanco was sentenced to 120 months of imprisonment as to his convictions on Counts Two and Three, also to be served concurrently.

Rosario’s sentencing hearing was held on April 18, 2016. He received a sentence of 102 months’ imprisonment on his conviction pursuant to Count Three. The District Court also imposed three-year terms of supervised release on all three codefendants for their convictions.

Tanco, Cepeda, and Rosario filed timely notices of appeal. The consolidated appeals challenge: (1) the sufficiency of the evidence as to Cepeda’s conviction on Count One for possession of firearms and ammunition by an unlawful user or addict of a controlled substance, in violation of 18 U.S.C. § 922(g)(3) ; (2) the sufficiency of the evidence for Tanco’s conviction on Count Two for being a convicted felon in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1) ; (3) the sufficiency of the evidence for Tanco’s and Rosario’s convictions on Count Three for aiding and abetting in the illegal possession of a machinegun, in violation of 18 U.S.C. § 922(o) ; and (4) the procedural and substantive reasonableness of Tanco’s and Cepeda’s sentences.

II.

We begin by addressing the defendants’ challenges to the denial of their Rule 29 motions, in which the defendants take aim at the sufficiency of the evidence supporting their convictions. We review de novo the District Court’s denial of a Rule 29 motion that is based on a challenge to the sufficiency of the evidence to support a conviction. United States v. Cortes-Caban, 691 F.3d 1, 12 (1st Cir. 2012) ; United States v. Perez-Melendez, 599 F.3d 31, 40 (1st Cir. 2010). We undertake such review by considering the evidence in the record "in the light most favorable to the prosecution" and by determining whether, considered in that light, the "body of proof, as a whole, has sufficient bite to ground a reasoned conclusion that the government proved each of the elements of the charged crime beyond a reasonable doubt." United States v. Lara, 181 F.3d 183, 200 (1st Cir. 1999).

A.

We first consider Cepeda’s challenge to the sufficiency of the evidence for his conviction on Count One for violating 18 U.S.C. § 922(g)(3), which makes it "unlawful for any person ... who is an unlawful user of or addicted to any controlled substance ... to ... possess in or affecting commerce, any firearm or ammunition." To establish the "unlawful user" element of this offense, the government must prove beyond a reasonable doubt that (1) the defendant used controlled substances regularly, (2) that the use took place over a long period of time, and (3) that the use was proximate to or contemporaneous with his possession of a firearm. See United States v. Caparotta, 676 F.3d 213, 216 (1st Cir. 2012) (defining "unlawful user" under § 922(g)(3) ); United States v. Marceau, 554 F.3d 24, 30 (1st Cir. 2009) (same).

Cepeda does not dispute that he possessed a firearm. He contends only that the evidence was insufficient to support a finding that he was "an unlawful user of ... any controlled substance" within the meaning of § 922(g). He alleges that the only evidence in the record that could suffice to support that finding is the testimony from the law enforcement officer who interviewed him that he admitted during that interview that he had been a regular, long-term drug user. Cepeda further contends that this evidence cannot suffice to establish that he was an "unlawful user," however, because, in his view, that admission was not corroborated.

The government agrees that the admission is necessary to prove Cepeda’s regular, long-term drug use and thus that he was an "unlawful user." The government further agrees that the admission must be corroborated in order for it to be able to provide the requisite evidentiary support for a finding that he was an "unlawful user," such that his conviction then could survive Cepeda’s sufficiency-of-the-evidence challenge. But, the government contends, his challenge still lacks merit.

The...