United States Court of Appeals

For the First Circuit

No. 20-1214

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ ESPINOZA-ROQUE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Howard, Chief Judge,

Kayatta, Circuit Judge,

and Casper,* District Judge.

Jessica E. Earl, Assistant Federal Public Defender, with Eric 

Alexander Vos, Federal Public Defender, Franco L. Pérez-Redondo, 

Assistant Federal Public Defender, and Kevin E. Lerman, Research 

& Writing Specialist, on brief, for appellant.

Joshua K. Handell, Attorney, Criminal Division, with W. 

Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, 

Assistant United States Attorney, and Julia M. Meconiates, 

Assistant United States Attorney, on brief, for appellee.

* Of the District of Massachusetts, sitting by designation.
February 15, 2022
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KAYATTA, Circuit Judge. José Espinoza-Roque challenges 

the 46-month sentence he received after pleading guilty to various 

firearm offenses. The length of the challenged sentence was shaped 

by the district court's finding that Espinoza was an unlawful drug 

user at the time of his offenses. Because we find that the district 

court erred in reaching that conclusion, we vacate the resulting 

sentence. Our reasoning follows.

I.

In January 2019, Espinoza and a co-defendant were 

indicted for two illegal firearms sales alleged to have occurred 

in May and June of 2018. As relevant here, Espinoza was charged 

with dealing firearms without a license and illegally possessing 

a machine gun in violation of 18 U.S.C. §§ 922(a)(1)(A) and 922(o), 

respectively. Espinoza pleaded guilty.

Because each of Espinoza's offenses involved at least 

one qualifying gun, the United States Sentencing Guidelines called 

for a higher base offense level (BOL) if Espinoza was also "a 

prohibited person at the time" of the offenses. U.S.S.G.

§ 2K2.1(a)(4)(B) (emphasis added). The Guidelines define 

"prohibited person" by reference to 18 U.S.C. § 922(g). U.S.S.G.

§ 2K2.1 app. n.3. In turn, 18 U.S.C. § 922(g) applies to, inter 

alia, "any person . . . who is an unlawful user of or addicted to 

any controlled substance (as defined in section 102 of the 

Controlled Substances Act (21 U.S.C. 802))." To determine whether 
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a person "is an unlawful user," we apply a three-part test: The

offender must have used a controlled substance (1) regularly 

(2) "over a long period of time" (3) "proximate to or 

contemporaneous with the possession of the firearm." United States

v. Caparotta, 676 F.3d 213, 216 (1st Cir. 2012) (quoting United 

States v. Marceau, 554 F.3d 24, 30 (1st Cir. 2009)). To justify 

an unlawful-user sentencing enhancement, the government must prove 

these facts by a preponderance of the evidence. See United States

v. Damon, 595 F.3d 395, 399 (1st Cir. 2010).

Of particular relevance here is Caparotta's third

element: temporal nexus. Requiring the government to prove that 

element serves two purposes. First, it effectuates Congress's

intent to reach an offender "who is an unlawful user." 18 U.S.C. 

§ 922(g)(3) (emphasis added); see also United States v. Augustin, 

376 F.3d 135, 138 (3d Cir. 2004) ("The use of the present tense 

was not idle. Quite simply, Congress intended the statute to cover 

unlawful drug use at or about the time of the possession of the 

firearm, with that drug use not remote in time or an isolated 

occurrence."). Second, the temporal limitation is necessary "to 

avoid unconstitutional vagueness" in the statutory definition. 

Marceau, 554 F.3d at 30.

In its presentence investigation report (PSR), probation 

calculated Espinoza's Guidelines sentencing range using a BOL of 

20 based on the premise that Espinoza was an unlawful user at the 
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time of his offenses. Espinoza objected to that characterization. 

Relying solely on a translated summary of statements Espinoza made 

to probation regarding his drug use (which we will describe in 

more detail below), the district court classified Espinoza as an 

unlawful user of marijuana at the time of his offenses. For that 

reason, the court applied section 2K2.1(a)(4)(B)'s "prohibited 

person" enhancement.

On appeal, Espinoza challenges the unlawful-user 

determination that led the district court to adopt a BOL of 20.

II.

Espinoza advances two arguments in support of his 

contention that the district court erred in concluding that he was

an unlawful user at the time of his offenses.1 His first argument

is a categorical one: A court's classification of a defendant as 

a "prohibited person" under section 2K2.1(a)(4)(B) can never rest 

solely on a defendant's uncorroborated admission. Alternatively, 

Espinoza argues that the particular statements upon which the 

district court relied did not provide an adequate basis for the 

court's unlawful-user determination.2

1 The district court concluded that Espinoza was "not an 

addict." The government does not dispute this finding on appeal. 

Thus, our analysis focuses on the question whether Espinoza was 

"an unlawful user" at the time of his offenses.

2 Espinoza also gestures at an argument that because he did 

not physically possess the guns sold in May 2018, the only question 

is whether he was an unlawful user for the purposes of the June 27, 

2018 offense. Any such argument is waived for lack of development. 
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We consider Espinoza's two arguments in turn.

A.

Espinoza insists that a section 2K2.1(a)(4)(B)

sentencing enhancement "cannot be based on a defendant's 

statements alone where no independent evidence in the record 

established he was a long-term drug user." In so claiming, 

Espinoza relies on our decision in United States v. Tanco-Baez, 

where we held that a defendant's "uncorroborated admission" to 

long-term drug use did not suffice to support his criminal 

conviction under 18 U.S.C. § 922(g)(3). 942 F.3d 7, 25 (1st Cir. 

2019).

The government contends that Espinoza did not air this 

theory below and has waived it on appeal by failing to recognize 

that plain error review applies. Espinoza in reply invokes 

precedent indicating that "a defendant's objection need not be 

framed with exquisite precision" in order "[t]o preserve a claim 

of procedural sentencing error for appellate review." United 

States v. Rivera-Berríos, 968 F.3d 130, 134 (1st Cir. 2020). 

Although Espinoza is correct as a general matter, we also have 

explained that a defendant's objection must be "sufficiently 

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It 

is not enough merely to mention a possible argument in the most 

skeletal way, leaving the court to do counsel's work."). We assume 

without deciding that it is permissible to frame the sentencing 

inquiry as whether Espinoza was a prohibited person at the time of 

either of his two offenses.
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specific to call the district court's attention to the asserted 

[procedural] error." Id. (quoting United States v. Soto-Soto, 855 

F.3d 445, 448 n.1 (1st Cir. 2017)). Below, Espinoza argued only 

that his statements as memorialized in the PSR did not satisfy 

Caparotta's three-part test. This argument did not fairly preserve 

the distinct claim that uncorroborated admissions cannot provide 

the sole basis for a section 2K2.1(a)(4)(B) enhancement. So we 

tend to agree that Espinoza waived that latter claim on appeal by 

failing to address the governing standard of plain error review in 

his opening brief. See United States v. Pabon, 819 F.3d 26, 33–

34 (1st Cir. 2016); United States v. Mayendía-Blanco, 905 F.3d 26,

32 (1st Cir. 2018).

Nevertheless, the simpler point is that Espinoza's 

argument on appeal demonstrates no plain error. An appellant 

cannot establish plain error using "case law absent clear and 

binding precedent." United States v. Marcano, 525 F.3d 72, 74 

(1st Cir. 2008) (per curiam) (citing United States v. Caraballo–

Rodriguez, 480 F.3d 62, 70 (1st Cir. 2007)). Espinoza fails to 

locate any such precedent on the relevant issue. He hinges his 

argument entirely on a case concerning the quality and quantum of 

proof necessary to support a finding of guilt beyond a reasonable 

doubt. See Tanco-Baez, 942 F.3d at 15. This case, by contrast, 

involves a sentencing enhancement to be supported by a 

preponderance of the evidence. See Damon, 595 F.3d at 399. Given 
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that substantial difference, Tanco-Baez cannot establish plain 

error in this case.

B.

We turn next to the question whether the particular 

statements attributed to Espinoza support a section 2K2.1(a)(4)(B)

enhancement in this case. Because Espinoza preserved this claim 

below, we review the district court's unlawful-user finding for 

abuse of discretion. United States v. García-Pérez, 9 F.4th 48, 

52 (1st Cir. 2021). In so doing, we review questions of law de 

novo and questions of fact for clear error. Id. "[W]hen there 

are two plausible views of the record, the sentencing court's 

adoption of one such view cannot be clearly erroneous." United 

States v. St. Cyr, 977 F.2d 698, 706 (1st Cir. 1992). On the other 

hand, if the court below improperly calculated Espinoza's 

Guidelines sentencing range, it committed a "significant 

procedural error" that constitutes an abuse of discretion. Gall

v. United States, 552 U.S. 38, 51 (2007).

The PSR's translated summary of Espinoza's relevant 

statements reads as follows: "As reported and since age 20 until 

arrest, [Espinoza] smokes one or two joints daily of marihuana, 

seven days a week. He smokes marihuana because it helps him sleep. 
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However, he mentioned that he could spend weeks without smoking 

marihuana."3 

The district court read this summary as containing two 

"direct[ly] contradict[ory]" assertions: That Espinoza used 

marijuana every day without interruption to get to sleep, or that 

his use could be interrupted by some uncertain number of weeks. 

Explaining that it would "decide which [statement] to believe or 

not believe," the district court chose the first assertion. On 

that basis, it then deemed Espinoza to have been an unlawful user 

at the time of his offenses. Whatever might be said about the 

permissibility of that choice in a vacuum, we conclude that here, 

it was clearly erroneous given other, undisputed evidence in the 

record.

That other evidence is Espinoza's post-arrest drug test, 

which was negative for controlled substances. Espinoza contends 

-- apparently without dispute from the government -- that 

urinalysis tests like the one he underwent can detect cannabinoids 

for many weeks after their use. Espinoza does not seem to have 

invoked any specific figure below, and it is enough for our 

purposes to conclude that the negative drug test rendered the

district court's finding of continuous daily use clearly 

erroneous. Put simply, the district court's sentencing rationale 

3 The PSR indicated that Espinoza "suffers . . . from 

insomnia."
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(that Espinoza used marijuana every single night) was not 

"plausible" in light of the negative drug test. St. Cyr, 977 F.2d 

at 706.4

The government maintains that Espinoza's drug test --

conducted roughly six months after the last charged offense --

"sheds no information as to whether Espinoza used drugs 

contemporaneously with the offense." We do not agree. The test 

was conducted at the time of Espinoza's arrest, before he spoke 

with probation. So its probative force in construing Espinoza's 

statement to probation is not diminished by the passage of time 

between the charged conduct and the test. This is not to say that 

the test proves non-use at the time of Espinoza's offenses. But 

it does substantiate Espinoza's claim that he could abstain from 

smoking marijuana for periods of time, because it shows that he in 

fact did so. As a result, it clearly refutes the contention that 

Espinoza's description of his drug use proves uninterrupted 

nightly use. And without that reading, the sole rationale offered 

by the district court for finding the requisite temporal nexus 

disappears.

4 The government appears to suggest that Espinoza raises this 

argument for the first time on appeal. But the government stops 

short of arguing that plain error review governs the claim. And 

for good reason: Espinoza clearly alleged below that "his negative 

[drug] test upon his arrest" precluded an unlawful-user finding 

under Caparotta.
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In sum, we are "left with the definite and firm 

conviction that a mistake [was] committed" below when the district 

court concluded that Espinoza used marijuana every night without 

exception. United States v. U.S. Gypsum Co., 333 U.S. 364, 395 

(1948). A sentencing enhancement may not rest on a conclusion 

belied by undisputed facts. Accordingly, the district court 

clearly erred when it chose to "not believe" Espinoza's 

substantiated claim that he could go without smoking marijuana.

C.

Having thus found clear error in the sole rationale 

offered by the district court for finding the requisite temporal 

nexus, we turn to the government's fallback argument that 

Espinoza's statements to probation still admit enough to support 

a finding of temporal nexus even if they do not establish 

uninterrupted nightly use. Although not expressly framed as such, 

the argument sounds in harmless error. So we inquire whether "'the 

district court would have imposed the same sentence' even without 

[its] error." United States v. Tavares, 705 F.3d 4, 25 (1st Cir. 

2013) (quoting Williams v. United States, 503 U.S. 193, 203

(1992)).

The government does not argue that a temporal nexus would 

exist even if Espinoza had not used marijuana for some uncertain 

number of weeks prior to his offenses. Nor does it contend that 

we should replace Caparotta's "unlawful user" definition with that 
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of 27 C.F.R. § 478.11, which provides that "[a]n inference of 

current use may be drawn from evidence of . . . a pattern of use 

or possession that reasonably covers the present time."

The government instead contends that the unlawful-user

enhancement should stand because the record indicates that nightly 

marijuana use was Espinoza's customary norm, and it is therefore 

unlikely that Espinoza happened to be in periods of abstention at 

the time of both charged offenses (which occurred roughly a month 

apart). The district court never adopted this rationale. To the 

contrary, it is fair to conclude that the court implicitly rejected 

it. Below, the government did not urge the court to disregard 

Espinoza's contention that he could abstain from smoking for weeks 

at a time. Rather, the government summarily adopted probation's

proposed BOL, which it recognized was calculated "on the basis of 

the statements that [Espinoza] made to the probation officer." In 

other words, the government directed the district court to consider 

Espinoza's PSR statement as a whole, presumably believing it

supported an unlawful-user enhancement. But the court evidently 

did not agree -- otherwise, why would the court (apparently sua 

sponte) have proceeded "to decide which [statement] to believe or 

not believe"?5

5 We frequently rely on implicit findings of the district 

courts in reviewing rather cryptic sentencing explanations. See, 

e.g., United States v. Butler-Acevedo, 656 F.3d 97, 100 (1st Cir. 

2011) ("Given this record, we cannot say that the district court 
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We agree that, at least on this record, evidence of longtime regular use interrupted by periods of abstention is 

insufficient to carry the government's burden to invoke the 

enhancement. As an initial matter, the government's probabilistic 

reasoning is not as airtight as the government seems to assume. 

See, e.g., Charles Nesson, The Evidence or the Event? On Judicial 

Proof and the Acceptability of Verdicts, 98 Harv. L. Rev. 1357, 

1378–79 (1985) (discussing the "Blue Bus" problem, which posits 

that a plaintiff cannot proceed to trial on evidence showing an 

80% likelihood that he was injured by a Blue Bus Company vehicle

as opposed to some other bus). Moreover, if one could infer a 

temporal nexus from regular use interrupted by some uncertain 

period of time, Caparotta's temporal nexus requirement would in 

cases like this be largely subsumed by its "regular use" 

requirement.

Ultimately, the government bears the burden of proving 

qualifying drug use. Damon, 595 F.3d at 399. The foregoing 

analysis leads us to conclude that the government's scant proof --

failed to consider [the defendant's] history and characteristics, 

even though it did not explicitly refer to these factors."); United 

States v. Fey, 834 F.3d 1, 3 (1st Cir. 2016) (explaining that if 

a sentencing court "does not explicitly" explain its imposition of 

a special condition, "we will attempt to 'infer the court's 

reasoning from the record'") (quoting Pabon, 819 F.3d at 31)). 

And in this instance, the option of remanding to confirm our 

reading of the court's implicit finding is unavailable because the 

sentencing judge has regrettably passed away.
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minus the court's clear error in construing Espinoza's statements 

to probation -- does not show by a preponderance of the evidence

that Espinoza was unlawfully using marijuana "proximate[ly] to or 

contemporaneous[ly] with" his firearm offenses. Caparotta, 676

F.3d at 216 (quoting Marceau, 554 F.3d at 30). As a result, "[w]e 

cannot say that the district court's" clearly erroneous sentencing 

rationale "'did not affect the . . . selection of the sentence 

imposed.'" United States v. Castillo-Torres, 8 F.4th 68, 73 (1st 

Cir. 2021) (second alteration in original) (quoting Tavares, 705 

F.3d at 26–27). In other words, the court's error was not 

harmless. Id. So we will remand for resentencing. See Tavares, 

705 F.3d at 25.

III.

In its brief, the government offered no response to 

Espinoza's request to limit the factual record on remand -- a 

request that is consistent with our past practice and recognition 

that "no party -- including the government -- is entitled to an 

unlimited number of opportunities to seek the sentence it desires." 

United States v. Román-Huertas, 848 F.3d 72, 78 (1st Cir. 2017)

(alteration omitted) (quoting United States v. Ramos-González, 775 

F.3d 483, 508 (1st Cir. 2015)).
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We therefore reverse the "prohibited person" enhancement 

and remand for resentencing without that enhancement.6

6 This disposition eliminates the need to address Espinoza's 

claim that the district court plainly erred under Rehaif v. United 

States, 139 S. Ct. 2191 (2019), when it applied the 

section 2K2.1(a)(4)(B) enhancement without finding that Espinoza 

knew of his status as an unlawful drug user.