Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding D.C. No. 1:11-cr-00067-BLW-1
The opinion of the court was delivered by: Gould, Circuit Judge:
Argued and Submitted August 28, 2012-Seattle, Washington
Before: Mary M. Schroeder and Ronald M. Gould, Circuit Judges, and Paul L. Friedman, Senior District Judge.*fn1
Appellant Ruben Nungaray challenges the district court's decision to increase his sentence by two levels under U.S.S.G. § 2K2.1(b)(1)(A). We consider whether the district court erred by enhancing Nungaray's sentence based on its finding that he constructively possessed four firearms. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
On July 20, 2011, Nungaray pled guilty to one count of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Although he pled guilty to only one count of unlawful firearm possession, at the sentencing hearing, the district court found by a preponderance of the evidence that Nungaray constructively possessed four other guns that he sold to an undercover officer. As a result, the court enhanced Nungaray's sentence by two levels under U.S.S.G. § 2K2.1(b)(1)(A) for a total offense calculation of 23 with a criminal history score of VI, making the guideline sentencing range 92 to 115 months. The district court sentenced Nungaray to 92 months.
Nungaray sold firearms to undercover officer, Sergeant Martin Flores, in Boise, Idaho, on January 5, 2010. On January 4, 2010, a confidential informant told the FBI that Nungaray wanted to sell several guns. Later that day, Nungaray called the informant and offered to sell five firearms for $1,200: a .38 caliber revolver, a .380 caliber pistol, a Derringer, and two shotguns. On January 5, 2010, Nungaray sent a text message to the informant with pictures of four firearms: a .38 caliber revolver, a .357 caliber revolver, a Derringer, and a .380 caliber pistol. The informant then introduced Sergeant Flores and Nungaray through a three-way phone call. The three then negotiated a price of $900 for the four guns.
At the sentencing hearing, Sergeant Flores testified that he and Nungaray originally agreed to meet at Cabela's in Boise, but Nungaray later changed the location to a particular Jack-in-the-Box fast-food restaurant in Boise. When Nungaray arrived, he left his car and got into the passenger's seat of Sergeant Flores's car. Nungaray first asked Sergeant Flores to follow him to his home to get the guns, but Sergeant Flores refused. After this conversation, Nungaray took a brief phone call on his cell-phone, directed Sergeant Flores to pop the trunk, and then made another phone call with his cell-phone and spoke in Spanish. Shortly after this call, a woman approached the car, placed a bag containing the four guns in the trunk, and left. Nungaray told Sergeant Flores that he could inspect the guns in the trunk while Nungaray remained in the passenger seat. Sergeant Flores did so, and after looking in the trunk he returned to the car and paid Nungaray the agreed compensation for the guns. Nungaray then said he would contact Sergeant Flores for another deal.
Nungaray, at the sentencing hearing, testified that he sold the guns on behalf of his elderly, disabled friend Corrie who needed money. Per Nungaray's story, he was just a go-between who never took possession of the guns. According to Nungaray, Corrie took the pictures of the guns and sent them to Nungaray who forwarded them to the informant. At Nungaray's request, Corrie asked her friend Crystal to take the guns from Oregon to Boise and to meet Nungaray at the Jack-in-the-Box where Nungaray told her to put the guns in Sergeant Flores's trunk. Nungaray admitted that he negotiated the sale price and intended to make another sale to Sergeant Flores,*fn2 but said that he gave the full payment to Corrie the day after the sale and kept none of the money for himself. He testified that he never touched the guns and wanted to keep them out of his possession because of his previous felony conviction.
At the sentencing hearing, Nungaray's counsel argued that Nungaray's actions were akin to that of a stock broker and he lacked the dominion and control necessary for constructive possession. The district court rejected this argument. After reviewing Ninth Circuit precedent, the Federal Jury Practice and Instructions definition of constructive possession,*fn3 and the evidence presented at the hearing, the district court found that the facts demonstrated a nexus sufficient to establish that Nungaray had dominion and control over the guns. Specifically, the court reasoned that "where an individual negotiates the sale of the item, sends pictures of it to another individual, arranges for the sale, is present ...