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Full Opinion
United States Court of Appeals
For the First Circuit
No. 13-1070
UNITED STATES OF AMERICA,
Appellee,
v.
MARCELINO GUZMÁN-MONTAÑEZ,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and Gelpí,* District Judge.
Víctor J. González-Bothwell, First Assistant Federal Public
Defender, with whom Héctor E. Guzmán-Silva, Jr., Federal Public
Defender, Héctor L. Ramos-Vega, Assistant Federal Public Defender,
and Liza L. Rosado-Rodríguez, Research and Writing Specialist,
were on brief for appellant.
Luke V. Cass, Assistant United States Attorney, with whom Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
were on brief, for appellee.
June 13, 2014
*
Of the District of Puerto Rico, sitting by designation.
GELPÍ, District Judge. A jury in the District of Puerto
Rico convicted Marcelino Guzmán-Montañez (“Guzmán”) for being a
felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1) (“count one”), and for possession of a
firearm in a school zone in violation of 18 U.S.C. §§ 922(q)(2)(A)
& 924(a)(4) (“count two”). The District Court sentenced Guzmán to
60 months of imprisonment as to both counts.
On appeal Guzmán raises the following claims of error.
First, he argues that the district court improperly admitted
evidence that was both irrelevant and unfairly prejudicial.
Second, he posits that the evidence presented by the government
during trial was insufficient to sustain his convictions as to both
counts. Finally, he contends that the sentence imposed upon him
was procedurally and substantively unreasonable. We affirm the
conviction and sentence as to the felon in possession count.
However, we reverse the conviction and sentence as to the
possession of a firearm in a school zone count. We discuss
Guzmán’s claims seriatim.
I. Relevant Factual and Procedural Background
During the morning hours of March 14, 2012, Santiago
Nieves-Rivera (“Nieves”), owner of a lechonera1 restaurant in
1
In Puerto Rico lechón is roasted pork, and lechoneras are
generally open air establishments where the entire animal is cooked
rotisserie style. Fritters and alcoholic beverages are also sold.
-2-
Bayamón, Puerto Rico, saw a burgundy-colored car drive slowly by
his establishment. Just then, the vehicle backed up and returned
to his establishment. Two men exited the vehicle. They approached
Nieves to order fritters. One of these men was Guzmán. Nieves
found the situation very suspicious. Nervous, afraid, and while
firmly holding his machete, Nieves asked both men to leave. At
that moment, he noticed a silver gun tucked on the side of the
waist of one of the men as they were exiting. The man carrying the
gun was later identified as “the skinny one” (hereinafter “the
other suspect”). As soon as they left, Nieves called the police
and reported the events. He provided a physical description of the
suspects and their vehicle, a burgundy Suzuki SX4 with licence
plate number HPH 299. Nieves did not see Guzmán carrying a gun.
The event was broadcast over the police radio as an
attempted robbery. Police Officer Carmen Nieves de Jesús (“Nieves
de Jesús”), while on patrol duty, subsequently saw two men exiting
a vehicle parked in front of a Church’s Chicken fast food
restaurant at the Rexville Shopping Center in Bayamón. The men and
vehicle matched the description she heard over the radio. Quickly,
she reported her identification of the individuals via radio
broadcast. Officer Edilberto Mojica-Caldero (“Mojica”) was
patrolling the area together with officer José Arroyo-Pérez
(“Arroyo-Pérez”). They heard Nieves de Jesús’s radio call and
-3-
headed towards the area. At the time, both police officers were
wearing civilian clothing.
As Mojica and Arroyo-Pérez approached the Church’s
Chicken parking lot, they spotted the burgundy Suzuki vehicle.
Arroyo-Pérez remained near the vehicle while Mojica observed the
two men from outside the fast food restaurant. Mojica watched as
Guzmán stood in line to order food. Then, he noticed a black
pistol protruding from Guzmán’s waistband.
From that moment on, the following events took place
rapidly. Outside, marked patrol cars arrived. Immediately, the
other suspect approached Guzmán and whispered something in his ear.
Without delay, Guzmán left the line and walked quickly towards the
bathroom. He entered the bathroom for a brief moment. As Guzmán
exited the bathroom, Mojica entered the restaurant and detained
both men. However, Guzmán was no longer carrying in his waistline
the object Mojica had seen on him moments earlier. As the suspects
were detained, officers Arroyo-Pérez and Ismael Díaz-Rivera
(“Díaz”) entered the bathroom searching for additional suspects.
None were found.
Following the other officers’ search, Mojica then
searched the bathroom and found a pistol in the diaper changing
station. The pistol was in plain sight, stuck between the plastic
partitions of the diaper changing station. The firearm was a black
Smith and Wesson pistol, model 4003 tactical, .40 caliber. The
-4-
police officers who searched the bathroom before Mojica did not see
the weapon. In turn, Guzmán and the other suspect were placed
under arrest. Shortly thereafter, the police officers searched the
burgundy Suzuki vehicle. They seized a silver Beretta pistol found
inside the glove compartment. The weapon matched the description
of the gun Nieves reported seeing the other suspect carry at the
lechonera.
On March 15, 2012, a complaint was filed against Guzmán
charging him with being a convicted felon in possession of a
firearm. Shortly thereafter, a federal grand jury returned a
two-count indictment. Both counts charged Guzmán with possessing
a Smith and Wesson pistol, Model 4003 tactical, serial number
VJL7561, .40 caliber. Count one charged Guzmán with being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Count two, in turn, charged him with possessing a firearm in a
school zone in violation of 18 U.S.C. §§ 922(q)(2)(A) & 924(a)(4).
Guzmán exercised his constitutional right to trial by jury.
Prior to trial, Guzmán moved in limine to exclude
Mojica’s testimony relating to the silver Beretta pistol seized
from the vehicle following the arrest. The District Court reserved
its ruling.
During trial, Mojica testified about the silver Beretta
pistol seized in the vehicle. Guzmán renewed his objection
arguing, once again, that the Beretta pistol was immaterial,
-5-
irrelevant to the charges, and had a prejudicial effect because it
was not the weapon he was charged with possessing. The District
Court overruled the objection, permitted the testimony, and gave
the jury the following instruction:
All right. Ladies and gentlemen of the jury,
this weapon has nothing to do with this case.
It was just part of the inventory that was
made by the police and found by Agent Mojica.
But the -- Mr. Guzmán is not on trial for
possession of this particular weapon, the one
that was found in the car. Okay? All right.
The court provided a second instruction during Mojica's testimony,
following his description of the silver Beretta pistol, and its
admission as an exhibit:2
Ladies and gentlemen, I want to stress to you
again that this is a different pistol from
that found in the bathroom. And that Mr.
Guzmán is not charged with possession of this
Beretta pistol. Is that understood? Okay. Go
ahead.
Guzmán moved for a mistrial arguing the silver Beretta
weapon found in the vehicle constituted irrelevant, prejudicial and
inflammatory evidence. The government, in turn, argued that the
evidence was necessary to provide the jury with the complete
factual scenario of what transpired. The District Court denied
Guzmán’s request.
2
A third instruction regarding the Beretta pistol was
provided to the jurors together with the rest of the jury
instructions before deliberation.
-6-
Regarding the second count, to prove that the events took
place within a school zone, in violation of
18 U.S.C. §§ 922(q)(2)(A) & 924(a)(4), the prosecution used
Mojica’s testimony to establish the proximity between Church’s
Chicken and the Colegio Emmanuel Discípulos de Cristo (“the
school”), as well as Guzmán’s knowledge of being within the
requisite distance. According to Mojica, the school is located 300
feet away from Church’s Chicken and is visible from inside the
establishment.3 The government also submitted as evidence a
picture of the school’s main gate.
After the prosecution rested, Guzmán filed a motion for
acquittal under Rule 29 of the Federal Rules of Criminal Procedure,
arguing that the prosecution’s evidence was insufficient to sustain
his convictions. The District Court denied Guzmán’s motion as to
count one and reserved its judgment as to count two.
The jury convicted Guzmán on both counts. After the
verdict, Guzmán filed a subsequent motion under Rule 29 as to count
two, since the District Court had not yet ruled on his earlier
acquittal motion. The Court denied Guzmán’s motion for acquittal.
The pre sentence report (“PSR”), prepared by the United
States Probation Office, recommended a combined base offense level
of 14, pursuant to U.S.S.G. § 2K2.1(a)(6), and a two-level (2)
3
The parties had previously stipulated that the fast food
restaurant was located 140 feet from the school.
-7-
enhancement for stolen firearms, pursuant to
U.S.S.G. § 2K2.1(b)(4)(A), yielding a total offense level of 16
with Criminal History Category I. The applicable sentencing range
for these calculations was 21 to 27 months, with no statutory
minimum sentence.
The government argued for a sentence of 72 months. The
District Court imposed a sentence of 60 months of imprisonment.
The Court based its variance on Guzmán’s criminal history and the
nature of the offense.
II. Discussion
A. Admission of the Gun Evidence
To prove Guzmán was in possession of the firearm charged
in the indictment, the government presented evidence of both the
black Smith and Wesson pistol found in the bathroom at Church’s
Chicken, and the silver Beretta pistol recovered from the burgundy
Suzuki vehicle. Guzmán argues that the Beretta pistol was
irrelevant and, thus, the District Court abused its discretion by
admitting it as evidence. He asserts that the silver Beretta
pistol is completely unrelated to the elements of the offense and
that the erroneous admission of such irrelevant evidence caused
unfair prejudice which, in turn, influenced the jury’s verdict. At
trial, Guzmán argued as follows:
The Government is now going to do pictures
relating to the search of the vehicle, of the
gun. I move for a mistrial based on the
inflammatory nature of this, the fact that it
-8-
has prejudicial effect. As the Court correctly
stated, it really has nothing to do with the
case, he's not charged with it. And under 402
and 403 it's immaterial, irrelevant and has
prejudiced the jury as to the fact -- because,
remember, there's the testimony of Papo Nieves
saying he saw a weapon on the slim defendant,
which we now know to be Miguel. So now they
can make the comparison that that is the gun
that was in the vehicle or that might be the
gun that was in the bathroom....
The government, in turn, argued below that without
evidence of the silver Beretta pistol, the jury would be deprived
of the complete set of facts and could become confused:
Our position is that if we don't do that,
maybe they are misled. Because the first
witness said that he saw a pistol on Miguel.
So now we are entering this evidence as there
was another firearm. And also admit the
description of the firearm described by the
first witness. So we are not misleading the
jury in the sense --
At trial, Guzmán timely objected, on more than one
occasion, to the testimony regarding the Beretta pistol, and the
introduction of the weapon as an exhibit. The argument having been
preserved for appeal, we review the District Court’s ruling for
abuse of discretion. United States v. Williams, 717 F.3d 35, 40
(1st Cir. 2013). We proceed to discuss Guzmán’s arguments
regarding the admission of evidence accordingly.
1. Relevance
Guzmán argues that evidence of the silver Beretta pistol
seized is irrelevant. We disagree. As he correctly points out,
the Beretta pistol is not the firearm charged in the indictment.
-9-
Albeit true, such fact is not dispositive of this evidentiary
issue, and it does not automatically entail its irrelevance. This
second weapon was important to the prosecution’s case to the extent
that it corroborated the fact that Guzmán and the other suspect
each had a different weapon.
Rule 401 of the Federal Rules of Evidence defines
“relevant evidence” as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.” Fed. R. Evid. 401. “Evidence may be
‘relevant’ under Rule 401's definition, even if it fails to prove
or disprove the fact at issue-whether taken alone or in combination
with all other helpful evidence on that issue.” United States v.
Candelario-Silva, 162 F.3d 689, 704 (1st Cir. 1998)(quoting United
States v. Schneider, 111 F.3d 197, 202 (1st Cir. 1997)).
Mojica narrated the events that took place at Church’s
Chicken, starting from his observations while he stood outside the
restaurant, all the way up to the arrests of both individuals and
the seizing of both weapons. His testimony corroborated the
government’s theory that Guzmán was in possession of the black
Smith and Wesson pistol, while the other suspect carried the silver
Beretta pistol, as initially observed by Nieves at the lechonera.
-10-
We thus conclude that in the case before us the District
Court did not err by admitting as relevant evidence the existence
of the silver Beretta pistol.
2. Federal Rule of Evidence 403
Guzmán next contends that the District Court abused its
discretion under Rule 403 of the Federal Rules of Evidence by
admitting evidence of the silver Beretta pistol, thus creating
unfair prejudice. Rule 403 provides that “[t]he court may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid.
403. Guzmán posits that the evidence dangerously invited the jury
to infer that he was in possession of a weapon because he arrived
in a vehicle where another gun was found.
Time and again this court has afforded considerable
deference to a district court’s evidentiary balancing act. “We
usually defer to the district court’s balancing under Rule 403 of
probative value against unfair prejudice.” United States v. Smith,
292 F.3d 90, 99 (1st Cir. 2002). “Only rarely—and in
extraordinarily compelling circumstances—will we, from the vista of
a cold appellate record, reverse a district court's on-the-spot
judgment concerning the relative weighing of probative value and
unfair effect.” United States v. Currier, 836 F.2d 11, 18 (1st
Cir. 1987) (quoting Freeman v. Package Mach. Co., 865 F.2d 1331,
1340 (1st Cir. 1988)). “[T]he law shields a defendant against
-11-
unfair prejudice, not against all prejudice.” Smith, 292 F.3d at
99. “[A]ll evidence is meant to be prejudicial; it is only unfair
prejudice which must be avoided.” United States v.
Rodríguez–Estrada, 877 F.2d 153, 156 (1st Cir. 1989). Without a
doubt, evidence presented by the government in a criminal case is
always prejudicial to the defendant. “If it were not, the
prosecution would not be introducing it. . . . In conducting this
balancing test, the district court has especially wide latitude,
and Rule 403 tilts the balance in favor of admission.”
Candelaria–Silva, 162 F.3d at 705 (citations omitted)(internal
quotation marks omitted).
At trial, Guzmán challenged the inflammatory nature of
the silver Beretta pistol due to the fact that “nowadays, people
don’t like guns.” The District Court was not required to shield
Guzmán from the social dislike of weapons prompted by Puerto Rico’s
significantly high criminality rate. This does not create a per se
automatic unfair prejudicial effect.
Moreover, the District Court was emphatic that the silver
Beretta pistol was not the weapon Guzmán was charged with in the
indictment. We find that the instructions given by the District
Court were clear and sufficient, and adequately eliminated any
potential confusion or unfairly prejudicial inferences the jury
could have been inclined to make. See United States v. Sepúlveda,
15 F.3d 1161, 1184 (1st Cir. 1993) (“[C]ourts have long recognized
-12-
that, within wide margins, the potential for prejudice stemming
from improper testimony. . . can be satisfactorily dispelled by
appropriate curative instructions.”). For the foregoing reasons,
we find no evidentiary errors with respect to the admission of the
silver Beretta pistol.
B. Sufficiency of the Evidence
Guzmán also argues he was entitled to a judgment of
acquittal on both counts. We review the District Court’s denial of
a Rule 29 motion de novo. United States v. Pérez-Meléndez, 599
F.3d 31, 40 (1st Cir. 2010).
When evaluating the sufficiency of evidence, “we draw the
facts and all reasonable inferences therefrom in the light most
agreeable to the jury verdict.” Williams, 717 F.3d at 38; see also
United States v. Walker, 665 F.3d 212, 224 (1st Cir. 2011). This
is not an easy challenge for an appellant. “Defendants challenging
convictions for insufficiency of evidence face an uphill battle on
appeal.” United States v. Hernández, 218 F.3d 58, 64 (1st Cir.
2000).
1. Knowing possession of a firearm
To sustain a conviction under 18 U.S.C. § 922(g)(1) the
government has to prove beyond a reasonable doubt that the
defendant: 1) was a convicted felon; and 2) knowingly possessed a
firearm; 3) in circumstances that implicated interstate commerce.
Williams, 717 F.3d at 38 (citing United States v. Staula, 80 F.3d
-13-
596, 604 (1st Cir. 1996)). Here, the parties stipulated that,
pursuant to 18 U.S.C. § 922(g)(1), Guzmán was a convicted felon,
and that the firearm was transported through the channels of
interstate commerce. Hence, to sustain a conviction, the
prosecution’s burden was limited to proving the “knowing
possession” element. Guzmán argues the prosecution failed to
prove this element beyond a reasonable doubt because Mojica’s
testimony was insufficient. We disagree.
“Knowing possession of a firearm” may be proven through
either actual or constructive possession. United States v.
Liranzo, 385 F.3d 66, 69 (1st Cir. 2004). Actual possession is the
state of immediate, hands-on physical possession. United States v.
Zavala-Maldonado, 23 F.3d 4, 6 (1st Cir. 1994). Constructive
possession can be established by proving that the person has the
power and intention of exercising dominion and control over the
firearm. United States v. DeCologero, 530 F.3d 36, 67 (1st Cir.
2008). Either form of possession can be proven by way of direct or
circumstantial evidence. United States v. Rodríguez, 457 F.3d 109,
119 (1st Cir. 2006). We have also held that a conviction may be
entirely supported by circumstantial evidence. United States v.
Wight, 968 F.2d 1393, 1398 (1st Cir. 1992).
In United States v. Robinson, we found that evidence of
a defendant’s opportunity to store guns in an engine compartment
was sufficient to establish constructive possession. 473 F.3d 387,
-14-
398-99 (1st Cir. 2007). “[A]s long as a convicted felon knowingly
has the power and the intention at a given time of exercising
dominion and control over a firearm or over the area in which the
weapon is located, directly or through others, he is in possession
of the firearm.” Wight, 968 F.2d at 1398.
In the case before us, Mojica testified he saw a weapon
on Guzmán’s waist before he entered the bathroom. When Guzmán
became aware of the police officers arriving at the scene, he
stepped out of the line and walked towards the bathroom. Moments
later, Mojica saw Guzmán exit the bathroom where the weapon was
found. A rational jury could have concluded that Guzmán’s actions
reflected his ability and intention to exercise dominion and
control over the firearm. He was seen with the pistol before
entering the bathroom, and was without it when he walked out. He
was also the last person to enter and exit the bathroom before the
weapon was found. Mojica’s observations, thus, provided sufficient
evidence to prove Guzmán was in constructive possession of the
Smith and Wesson firearm found in the bathroom.
Standing alone, Mojica’s testimony is circumstantial
evidence sufficient to demonstrate Guzmán was in constructive
possession of the Smith and Wesson. In addition, the prosecution
introduced into evidence the restaurant’s surveillance video which
shows Guzmán walking into the bathroom and then exiting, upon the
arrival of the other police officers to the restaurant.
-15-
Guzmán maintains that, because Mojica’s testimony was, in
his view, clearly inconsistent with the testimony of the other
police officers, it is insufficient to sustain his conviction. He
further argues that, because he denied having possessed the
firearm, additional objective evidence was needed to corroborate
the conflicting evidence. This argument is unconvincing. The mere
existence of conflicting testimony does not render evidence
insufficient. United States v. Calderón, 77 F.3d 6, 10 (1st Cir.
1996)(explaining that it falls within the jury’s province whether
it chooses to believe a witness’s testimony over another).
“Evidence does not become legally insufficient merely because of
some inconsistencies in witnesses’s testimony.” Rodríguez, 457
F.3d at 119. Conflicting theories are for the factfinder to
decide, not for us to entertain. United States v. López-López, 282
F.3d 1, 19 (1st Cir. 2002).
In this case, the jury had two stories from which to
choose. The prosecution theorized that, as Guzmán stood in line at
the fast food restaurant, he was alerted that policemen arrived.
That is why he abandoned his place in line, entered the bathroom,
hid the weapon in the diaper changing station, and, as he exited
the bathroom, was detained. On the other hand, Guzmán denied
having possessed any weapon or having left the line to enter the
bathroom.
-16-
When the issue lies on credibility of the evidence, it is
up to the jury to decide. The factfinder is free to conduct its
own interpretation of the evidence. Wight, 968 F.2d at 1938. The
fact that the jury opted to give more weight to one version of the
facts over another is not for us to review. United States v.
Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)(“On appeal, it is not the
appellate court’s function to weigh the evidence or make
credibility judgments. Rather, it is for the jury to choose
between varying interpretations of the evidence.”)(citing United
States v. Maraj, 947 F.2d 520, 523 (1st Cir. 1991)). Here, we must
determine whether the jury’s verdict is supported by a “plausible
rendition” of the totality of the circumstance.
The court’s duty is to make sure the evidence is
sufficient to support the conviction. “We do not atomize our
analysis. We consider the evidence in its totality, not in
isolation, and the government need not negate every theory of
innocence.” United States v. Angulo-Hernández, 565 F.3d 2, 7 (1st
Cir. 2009).
The evidence provided by the government was sufficient.
Mojica’s depiction of the facts offered a plausible rendition of
Guzmán’s alleged possession of the firearm. Said rendition of the
facts convinced the jury. We therefore reject Guzmán’s sufficiency
of the evidence challenge to count one.
-17-
2. Possession of a firearm within a school-zone
Under 18 U.S.C. § 922(q)(2)(A) “[i]t shall be unlawful
for any individual knowingly to possess a firearm that has moved in
or that otherwise affects interstate or foreign commerce at a place
that the individual knows, or has reasonable cause to believe, is
a school zone.” A school zone is an area within a school or
“within a distance of 1,000 feet from the grounds of a public,
parochial or private school.” 18 U.S.C. § 921 (a)(25); see United
States v. Nieves Castaño, 480 F.3d 597 (1st Cir. 2007). Guzmán
contends that the prosecution’s evidence was insufficient to prove
the requisite element that he knew or reasonably should have known
he was in a school zone while possessing a firearm. We agree.
Colegio Emmanuel de Discipulos de Cristo is a school, as
defined by 18 U.S.C. § 922(q)(2)(A), that teaches pre-kindergarden
to sixth grade. The school is located on Route 167, across the
street from Rexville Shopping Center in Bayamon, where the Church’s
Chicken is located. The parties stipulated the distance between
Church’s Chicken and the school was less than 1,000 feet.4
At trial Mojica stated that the school was visible from
within the establishment, but provided no additional information.
No other witness testified as to this matter. Mojica’s entire
testimony follows:
4
As discussed earlier, the exact distance stipulated was
140 feet. However, at trial, Mojica indicated that his measurement
of the location yielded a distance of less than 300 feet.
-18-
MS. MONTANEZ: Q. All these events took place
-- this in particular of the Church and the
finding of the Smith & Wesson pistol - in
Church. What is nearby that restaurant?
A. In the front side of the establishment
there's a bilingual school for children,
primary level.
Q. And how far is that school from the
Church's restaurant?
A. I'd say less than 300 feet.
Q. Okay. And how do you know that?
A. I measured it.
Q. Can you see the school from the Church?
A. Correct, yes.
Q. How do you measure the distance from the
Church's Chicken restaurant to the school?
A. With a scene measuring device from the
traffic unit in Bayamón. From the door --
. . .
THE WITNESS: From the door towards the main
gate of said school.
BY MS. MONTANEZ:
Q. And that scene measuring device you took it
from where, you said?
A. That was given to me by one of the agents
of the traffic division in Bayamón which --
and it's used for investigation of deathly
accidents.
Q. From which door you started your
measurement?
A. From the main door of the establishment.
That's the one I went through.
Q. Until?
A. Up to the main gate of Emmanuel school.
That's the name of it.
MS. MONTANEZ: I have no more questions, Your
Honor.
THE COURT: I have -- let me -- when you say
the school main gate, do you mean the school
has a fence?
THE WITNESS: Correct, yes.
THE COURT: And the gate is on that fence, and
you measured to that point.
THE WITNESS: Up to the entrance gate. Yes,
sir.
THE COURT: All right. Thank you.
Cross-examination?
-19-
MS. MONTANEZ: Your Honor, I have, before the
defense goes, the picture of the school.
THE COURT: Well, you're going to have to show
it to --
MS. MONTANEZ: Yes. We can mark this as
Government ID 14. (NOTE: Document being
provided to the witness.)
Q. I'm showing you what has been marked as
Government ID No. 14. Do you recognize that
identification?
A. Yes. This is school area which is across
the - from the shopping center.
Q. And why do you recognize that
identification?
A. I go by it every day.
MS. MONTANEZ: Your Honor, we move into
evidence Government's Identification No. 14.
THE COURT: Any objection, Mr. --
MR. GONZALEZ: No objection, Your Honor.
THE COURT: Without objection, admitted as
Government's Exhibit No. 14. Do you want to
publish it? (NOTE: Document retrieved from the
witness.)
BY MS. MONTANEZ:
Q. I'm showing you what has been marked as
Government Exhibit number 14. What does this
picture show?
A. That's Emmanuel school.
Q. And is that -- this is the fence you were
referring to that you measured -- up until the
point you measured from the Church Chicken
door (indicating)?
A. Correct. Yes.
Relying exclusively on the school’s proximity, the
prosecution took no additional measures to provide grounds to
evince that Guzmán knew, or reasonably should have known, that he
was in a school zone. Instead, it relied on the closeness factor
as per se probative of Guzmán’s awareness. Mojica specifically
testified that the school, and its main gate, were visible from
Church’s Chicken. The record, however, shows that he failed to
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testify that the school’s sign was visible from Church’s Chicken.
In fact, the school sign was first mentioned after the prosecution
rested its case.
In United States v. Haywood, 363 F.3d 200 (3rd Cir.
2004), the Court of Appeals for the Third Circuit reversed a
conviction under § 922(q)(2)(A) on insufficiency grounds. As in
the case before us, appellant similarly argued that providing
evidence of a school’s distance was insufficient to establish his
knowledge of a school zone. The court agreed. “[T]he only
evidence that the government produced to support this conviction is
that the school is, in fact, within 500 feet of the [locale where
Haywood was found armed]. However, that is not sufficiently
conclusive to enable a reasonable juror to draw the inference that
Haywood knew or should have known of that proximity.” Haywood, 363
F.3d at 209. We find said ruling to be squarely on point.
It is likely that the prosecution could have shown that
Guzmán had the knowledge of the nearby school, but it failed to
introduce such evidence at trial. Juxtaposing the location of the
fast food restaurant with the school is not enough. Additional
facts were necessary, and could have easily been proven by way of
testimony of police officers who were at the scene, as well as
photographs or a video demonstrating that any reasonable person at
the Church’s Chicken would have indeed become aware of being in a
school zone. The prosecution likewise could have also demonstrated
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that to get to the establishment Guzmán inevitably would have
driven by the school. More so, because Guzmán did not live in the
neighborhood, his awareness had to be readily proven. Cf. Nieves-
Castaño, 480 F.3d at 604 (“Here, three minor children lived with
the defendant, and it would be easy for a jury to conclude that she
knew there were two schools nearby, within or just outside her
housing project and less than 1000 feet away, and that she
regularly passed by those schools. One school was, in fact,
located next to the south entrance of the housing project.”). In
the case before us the government asked the jury to take a giant
leap of faith, which falls considerably short of sufficiently
proving its case.
The evidence presented by the government was insufficient
to establish that Guzmán knew or reasonably should have known he
was in a school zone. Consequently, the conviction as to count two
must be vacated.
III. Conclusion
For the reasons explained above, we AFFIRM the conviction
on count one, REVERSE the conviction on count two, and REMAND for
resentencing proceedings consistent with this opinion.5
5
Guzmán argues that the sentence imposed upon him was both
procedurally and substantively unreasonable. Having remanded the
case for resentencing we need not address these arguments at this
time. During his resentence Guzmán will have an opportunity to
argue for what he understands to be an appropriate sentence. See
United States v. Bryant, 643 F.3d 28, 34 (1st Cir. 2011)(citing
Pepper v. United States, ___ U.S. ___, 131 S.Ct 1229 (2011)).
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