United States Court of Appeals 

For the First Circuit 

No. 18-2170 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

JAN EMMANUEL REYES-TORRES, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Carmen Consuelo Cerezo, U.S. District Judge] 

Before*

Lynch, Circuit Judge, 

and Saris,** District Judge. 

 José Luis Novas Debién, by appointment of the Court, on brief 

for appellant. 

 Gregory B. Conner, Assistant United States Attorney, 

W. Stephen Muldrow, United States Attorney, and Mariana E. BauzáAlmonte, Assistant United States Attorney, Chief, Appellate 

Division, on brief for appellee. 

October 27, 2020 

* While this case was submitted to a panel that included 

Judge Torruella, he did not participate in the issuance of the 

panel's opinion. The remaining two panelists therefore issued the 

opinion pursuant to 28 U.S.C. § 46(d). 

** Of the District of Massachusetts, sitting by designation. 
- 2 - 

LYNCH, Circuit Judge. Jan Emmanuel Reyes-Torres entered 

a straight plea of guilty in June 2018 to one count of illegal 

possession of a machine gun in violation of 18 U.S.C. §§ 922(o) 

and 924(a)(2) and was sentenced to forty-two months' imprisonment. 

Challenging his sentence on procedural and substantive grounds, 

Reyes-Torres argues that the district court inappropriately 

applied a four-level enhancement to his total offense level for 

possession of a firearm in connection with another felony of drug 

possession pursuant to United States Sentencing Guidelines 

("U.S.S.G.") § 2K2.1(b)(6). His primary argument is that 

possession of a firearm in connection with mere drug possession 

for personal use is insufficient to apply the enhancement. He 

also argues that the government failed to prove that he was engaged 

in a different felony offense, drug trafficking, as a basis for 

applying the enhancement. We hold the sentence is both 

procedurally and substantively reasonable and affirm. 

I. 

Around midnight on January 23, 2018, police officers in 

Caguas, Puerto Rico, were notified of a report of an armed robbery 

at a nearby Burger King. The police dispatch stated that there 

were several armed suspects in a champagne-colored Toyota Corolla. 

The officers stopped a champagne-colored Toyota Corolla as it was 
- 3 - 

leaving the Burger King parking lot and found Reyes-Torres alone 

in the car.1

The officers ordered Reyes-Torres to get out of the car. 

As he did, the officers saw a firearm on the floor of the driver's 

compartment and several baggies of drugs (later identified as 

cocaine and crack cocaine) in the driver's side door. The officers 

asked Reyes-Torres if he had a license for the firearm, but he did 

not respond. The officers arrested Reyes-Torres for violations of 

Puerto Rico's firearms law, P.R. Laws Ann. tit. 25, § 458c, and 

controlled substances law, P.R. Laws Ann. tit. 24, § 2404, which 

prohibits possession of certain drugs. 

The officers' search incident to arrest recovered a cell 

phone and thirty-one dollars from Reyes-Torres. During a later 

vehicle search, officers found numerous items inside the car's 

passenger compartment. They recovered a Glock pistol loaded with 

thirteen rounds of .40 caliber ammunition and modified to act as 

a machine gun, as well as three Glock high-capacity magazines 

loaded with a total of sixty-two rounds of .40 caliber ammunition. 

They recovered one clear plastic vial containing a white granular 

substance (which field tested positive for crack cocaine) and three 

1 The report of armed robbery was made by a Burger King 

employee who saw a gun on the floor of Reyes-Torres's car as he 

was purchasing food at the drive-through window and falsely 

believed that the restaurant was about to be robbed. Reyes-Torres 

did not actually rob the restaurant.
- 4 - 

clear plastic baggies containing a white powdery substance (which 

field tested positive for cocaine). They found a radio scanner, 

a black and red mask, a flashlight, a holster, and a white glove. 

They also found a second cell phone, an ATM card belonging to 

Reyes-Torres, and an additional $280. Photographs from one of the 

cell phones showed various pistols and machine guns and what 

appeared to be large amounts of narcotics being weighed with an 

electronic scale and packaged for distribution.2

The U.S. Probation Office's Pre-Sentence Report 

recommended a four-level enhancement to Reyes-Torres's total 

offense level under U.S.S.G. § 2K2.1(b)(6). That enhancement 

applies where the defendant 

used or possessed any firearm or ammunition in 

connection with another felony offense; or 

possessed or transferred any firearm or 

ammunition with knowledge, intent, or reason 

to believe that it would be used or possessed 

in connection with another felony 

offense . . . . 

U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (U.S. 

Sentencing Comm'n 2018). The Application Notes explain that the 

subsection applies 

if the firearm or ammunition facilitated, or 

had the potential of facilitating, another 

felony offense . . . [and] in the case of a 

drug trafficking offense in which a firearm is 

found in close proximity to drugs, drug2 Reyes-Torres denies that the photographs found on his 

cell phone depicted him with the guns or narcotics and alleges 

that they were sent to him by his friends.
- 5 - 

manufacturing materials, or drug 

paraphernalia . . . because the presence of 

the firearm has the potential of facilitating 

another felony offense . . . . 

U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) application 

note 14(A)-(B) (U.S. Sentencing Comm'n 2018). The Probation Office 

determined that the enhancement applied because Reyes-Torres used 

or possessed the firearm or ammunition in connection with "unlawful 

possession of a controlled substance," which was a felony offense 

under Puerto Rico law. Applying this enhancement, the Probation 

Office determined that the Guidelines Sentencing range was thirtyseven to forty-six months' imprisonment. 

The Pre-Sentence Report noted Reyes-Torres's history of 

drug use, in which he admitted to smoking marijuana on a daily 

basis but denied using or experimenting with any other controlled 

substances. He had provided a urine sample after being arrested 

which tested positive only for marijuana, tending to confirm his 

statement. The Pre-Sentence Report also stated that Reyes-Torres 

lacked stable employment and was financially supported by his 

parents.

The defendant filed an objection to the Pre-Sentence 

Report in which he argued that the four-level enhancement could 

not be applied to him because "there is not sufficient evidence 

[of] the weight of the alleged controlled substance in this case 

for the court to conclude it was during the commission of a felony 
- 6 - 

level controlled substance offense." He also argued that "no 

laboratory analysis was conducted on the substance nor was probable 

cause found by the grand jury" for the alleged drug offense and so 

the enhancement could not be applied. The defendant did not, at 

that point, argue that the enhancement under U.S.S.G. § 2K2.1(b)(6) 

could not apply to mere drug possession offenses or that the 

government had failed to prove drug trafficking. The Probation 

Office rejected the defendant's arguments. It reaffirmed that the 

enhancement applied because "unlawful possession of a controlled 

substance is a local offense punishable by imprisonment for a term 

exceeding one year" and the enhancement applied regardless of 

whether a criminal charge was brought or a conviction obtained. 

Both parties filed sentencing memoranda. The 

defendant's sentencing memorandum argued for a sentence of twentyfour months' imprisonment based off a total offense level which 

excluded the four-level enhancement. He argued that a lower 

sentence was appropriate under the 18 U.S.C. § 3553(a) factors 

because of his personal characteristics, strong family ties, and 

status as a first-time offender. The defendant's sentencing 

memorandum discussed his history of marijuana use and need for 

treatment and again did not refer to any use of cocaine or crack 

cocaine. The sentencing memorandum stated that he possessed the 

machine gun only "because of a vague notion of needing protection." 

It did not argue that the drugs found in the defendant's car were 
- 7 - 

solely for his personal consumption, that the sentencing 

enhancement could not be applied based on his mere possession for 

personal consumption, or that the government had failed to show 

evidence of drug trafficking. 

The government's sentencing memorandum included the 

photographs found on Reyes-Torres's cell phone which showed 

various guns and evidence of drug distribution. The government 

argued that the enhancement under U.S.S.G. § 2K2.1(b)(6)(B) 

applied because possession of any amount of cocaine or cocaine 

base was a felony under Puerto Rico law and case law from other 

circuit courts of appeal establishes that the enhancement can be 

applied where the other felony offense is mere drug possession. 

The government stated that "the evidence supports the conclusion 

that the firearm was used in connection with Reyes[-]Torres's 

felony of possessing cocaine and crack . . . [because] [t]he 

machinegun . . . had the potential to aid or facilitate (e.g., by 

protecting) defendant Reyes-Torres's possession of his illegal 

drugs." In the alternative, the government argued that a sentence 

of forty-six months was justified as a variance under the 18 U.S.C. 

§ 3553(a) factors, particularly given the dangerous nature and 

characteristics of the machine gun with numerous rounds and the 
- 8 - 

need for deterrence in light of Puerto Rico's serious problem with 

violent gun crime.3

In November 2018, the district court issued an order 

overruling the defendant's objection to the application of the 

sentencing enhancement. The court described the government's 

position from its sentencing memorandum as "recognizing that the 

underlying felony offense in this case is mere possession of 

controlled substances, and not distribution." But the court did 

not make a specific factual finding in the order that the felony 

offense was mere drug possession and not drug distribution.4 

Citing United States v. Carillo-Ayala, 713 F.3d 82, 92 (11th Cir. 

2013), the court held that "[b]ecause the machinegun was found in 

defendant's car and in close proximity to the drugs also located 

there, it had the potential of facilitating a felony drug offense." 

(Emphasis added.) It thus found that the enhancement applied under 

these circumstances. The underlying offense at issue in Carillo3 The government did not specifically argue in its 

sentencing memorandum that the evidence was also sufficient for 

the district court to find that Reyes-Torres was engaged in drug 

trafficking. But the government did state that U.S.S.G. 

§ 2K2.1(b)(6)(B) applies "in the case of a drug-trafficking 

offense in which a firearm is found in close proximity to drugs." 

See United States v. Paneto, 661 F.3d 709, 717 (1st Cir. 2011). 

Reyes-Torres does not argue that the government waived the argument 

that the enhancement should apply on the basis of evidence of drug 

distribution.

4 Given this record, it is no surprise that the district 

court did not make a specific factual finding as to drug 

distribution. 
- 9 - 

Ayala, however, was drug distribution and not mere drug possession, 

see id. at 85-86, and so by citing to that case the district court 

was not saying which underlying drug offense was the basis for its 

sentence.5

At the sentencing hearing, the defendant renewed his 

objection to the application of the enhancement under U.S.S.G. 

§ 2K2.1(b)(6) and argued for a sentence at the low end of the 

Guidelines Sentencing range. Defense counsel specifically argued 

for the first time that the four-level enhancement is "supposed to 

be added when you're talking about a drug trafficking offense, 

. . . that it can't be mere coincidental possession[,] and there 

must be a logical relation or sequence between the possession of 

[the] firearm and [the] related drug trafficking offense." He 

argued that the government had not proven that the machine gun was 

being used to facilitate a drug-trafficking offense and that the 

drugs found "were clearly for personal use," even though he 

referred only to Reyes-Torres's use of marijuana earlier in the 

5 "A firearm found in close proximity to drugs or drugrelated items simply 'has' -- without any requirement for 

additional evidence -- the potential to facilitate the drug 

offense. A defendant seeking relief under the safety valve, 

despite his possession of a weapon found in proximity to drugrelated items, will have a difficult task in showing that, even 

so, there is no connection with the drug offense so the safety 

valve applies." Carillo-Ayala, 713 F.3d at 92 (emphasis omitted). 

The district court directly quoted the first sentence from this 

passage in its order denying Reyes-Torres's objection to the 

sentencing enhancement. 
- 10 - 

hearing. Defense counsel stated that "[t]he weapon was possessed 

for a general sense of protection . . . [and] [i]t had nothing to 

do with protecting those drugs or [Reyes-Torres] being involved in 

any kind of drug trafficking enterprise."

The government responded that the nature of the machine 

gun and ammunition recovered, together with the drugs, mask, and 

radio scanner, made it clear that the machine gun was not for 

personal protection. The government also argued that the machine 

gun and ammunition created an imminent danger to the community 

which justified a higher sentence for adequate deterrence.6

The district court reasoned that the sentencing 

enhancement was warranted "since the defendant used or possessed 

the firearm or ammunition in connection with another felony 

offense, that is, the unlawful possession of controlled 

substances, as was determined in the Court's separate written 

6 The government did not directly argue at the sentencing 

hearing that the enhancement under U.S.S.G. § 2K2.1(b)(6)(B) was 

justified because the evidence showed drug trafficking, but it did 

argue that the machine gun was not for personal protection. 

Nonetheless, the district court was aware of the drug-trafficking 

issue because the defendant addressed that issue at the sentencing 

hearing in response to the government's sentencing memorandum. 

Cf. United States v. Martin, 520 F.3d 87, 93 (1st Cir. 2008) ("In 

considering objections to a sentence's substantive reasonableness, 

we examine the district court's contemporaneous oral explanation 

of the sentence, its near-contemporaneous written statement of 

reasons, and what fairly can be gleaned by comparing what was 

argued by the parties or proffered in the [Pre-Sentence Report] 

with what the sentencing court ultimately did." (citations 

omitted)). 
- 11 - 

order." Having applied the enhancement, the court determined that 

the applicable Guidelines range was thirty-seven to forty-six 

months' imprisonment. After discussing Reyes-Torres's age, 

employment history, and health, including his "history of daily 

marijuana use since age 17" and lack of treatment, the court 

sentenced him to forty-two months' imprisonment. In doing so, the 

court stated that it "considered the serious nature of the offense 

of conviction, the type of weapon that the defendant possessed, 

that is, a loaded machine gun, . . . his status as [a] first[-

time] offender . . . [,] [his] personal characteristics and [the] 

need to deter him from similar criminal behavior."

The defendant timely appealed. 

II. 

Where challenges are to the procedural and substantive 

reasonableness of a sentence, "[o]ur 'review process is 

bifurcated: we first determine whether the sentence imposed is 

procedurally reasonable and then determine whether it is 

substantively reasonable.'" United States v. Sayer, 916 F.3d 32, 

37 (1st Cir. 2019) (quoting United States v. Clogston, 662 F.3d 

588, 590 (1st Cir. 2011)). "In the sentencing context, we evaluate 

claims of unreasonableness in light of the totality of the 

circumstances." United States v. Flores-Machicote, 706 F.3d 16, 

20 (1st Cir. 2013) (citing Gall v. United States, 552 U.S. 38, 51 

(2007)); see also United States v. Sowers, 136 F.3d 24, 28 (1st 
- 12 - 

Cir. 1998) (stating that "we are not chained to the lower court's 

rationale but may affirm on any alternative ground supported by 

the record" and may "choose to follow a different analytic path"). 

A. The Sentence Is Procedurally Reasonable 

Reyes-Torres argues that the district court imposed a 

procedurally unreasonable sentence because it improperly applied 

the enhancement under U.S.S.G. § 2K2.1(b)(6). He argues that cases 

where this Court has upheld application of this enhancement have 

involved evidence of firearm possession in connection with drug 

trafficking, not mere possession. He argues that here, the 

government did not put into evidence the drug amount, packaging, 

or other circumstances which could have supported an inference of 

drug distribution and it failed to prove that the drugs were meant 

for anything other than personal consumption.

The government responds that this Court should reach and 

address the issue of whether the enhancement under U.S.S.G. 

§ 2K2.1(b)(6) applies to firearm possession in connection with 

mere drug possession for personal consumption. It argues that 

other circuit courts have held that the enhancement applies under 

those circumstances. Alternatively, the government argues on 

appeal that the evidence shows that Reyes-Torres was engaged in 

drug distribution and that alone provides a basis for applying the 

enhancement.
- 13 - 

In assessing the procedural reasonableness of a 

sentence, we apply a "multifaceted" abuse of discretion standard 

in which "we apply clear error review to factual findings, de novo 

review to interpretations and applications of the guidelines, and 

abuse of discretion review to judgment calls." United States v. 

Nieves-Mercado, 847 F.3d 37, 42 (1st Cir. 2017); see also United 

States v. Cannon, 589 F.3d 514, 516-17 (1st Cir. 2009). A factual 

predicate for application of a sentencing enhancement need only be 

proven by a preponderance of the evidence. Cannon, 589 F.3d at 

517. "We must ensure that the district court did not commit any 

'significant procedural error' to arrive at a sentence." Sayer, 

916 F.3d at 37 (quoting Gall, 552 U.S. at 51). Significant 

procedural errors include 

failing to calculate (or improperly 

calculating) the [Guidelines Sentencing 

Range], treating the Guidelines as mandatory, 

failing to consider the [18 U.S.C.] § 3553(a) 

factors, selecting a sentence based on clearly 

erroneous facts, or failing to adequately 

explain the chosen sentence -- including an 

explanation for any deviation from the 

Guidelines range. 

Flores-Machicote, 706 F.3d at 20 (second alteration in original) 

(quoting Gall, 552 U.S. at 51). 

This sentencing appeal is without merit. There was no 

objection made to the district court's finding of drug possession 

and so we affirm that finding. We also affirm the district court's 

finding that "[b]ecause the machinegun was found in defendant's 
- 14 - 

car and in close proximity to the drugs also located there, it had 

the potential of facilitating a felony drug offense." That finding 

is not clearly erroneous under the unanimous view of the case law. 

See, e.g., United States v. Justice, 679 F.3d 1251, 1255 (10th 

Cir. 2012) (collecting cases); see also United States v. Swanson, 

610 F.3d 1005, 1008 (8th Cir. 2010) ("The gun and PCP were both 

within [the defendant's] immediate reach and it was permissive for 

the district court to determine they were purposefully together 

and not close in proximity as a matter of coincidence."); United 

States v. Jenkins, 566 F.3d 160, 163 (4th Cir. 2009) ("A firearm 

can embolden the actor to possess the drugs or provide the actor 

protection for himself and his drugs, which are likely to be 

personally valuable even in small amounts."). 

On the undisputed facts, Reyes-Torres was also clearly 

in possession of the machine gun in furtherance of drug trafficking 

under our case law. The record evidence is plainly sufficient to 

justify an enhanced sentence for that reason. Cf. Sowers, 136 

F.3d at 28. 

Several facts in the record significantly undermine 

Reyes-Torres's contention that the cocaine and crack cocaine were 

for his personal use, rather than for distribution. Reyes-Torres 

denied using any drugs except for marijuana and had tested positive 

only for marijuana after being arrested. The photographs found on 

Reyes-Torres's cell phone and submitted to the district court 
- 15 - 

showed an electronic scale and large amounts of what appear to be 

narcotics packaged for distribution, which further indicate that 

the drugs found in his car were not for his personal consumption. 

Nothing in the record supports the defense's contention that the 

cocaine and crack cocaine were for the defendant's personal 

consumption or that the machine gun and ammunition were for mere 

personal protection. This Circuit's case law, described below, 

also supports this conclusion. 

Our decision in Cannon amply supports application of the 

sentencing enhancement on the basis of evidence of drug 

distribution. In Cannon, we held that we interpret "the phrase 

'in connection with' . . . broadly." 589 F.3d at 517 (quoting 

United States v. Thompson, 32 F.3d 1, 7 (1st Cir. 1994)); see also 

United States v. Peterson, 233 F.3d 101, 111 (1st Cir. 2000). In 

affirming the district court's application of the enhancement 

under U.S.S.G. § 2K2.1(b)(6), this Court stated that 

the record reflects that [the defendant], no 

stranger to the drug trade, was arrested with 

a loaded revolver while traveling in a vehicle 

in which police found multiple packages of 

drugs, as well as a substantial amount of cash 

among the occupants, all of whom indicated 

they were unemployed . . . [and that] [t]hese 

circumstantial facts, taken together, were 

sufficient to permit the district court to 

reasonably infer under a preponderance 

standard that . . . the drugs were intended 

for sale and not personal consumption. 

Cannon, 589 F.3d at 517-18. 
- 16 - 

In arriving at this conclusion, Cannon explained that 

"the large quantity of cash found on the driver [and passengers] 

. . . support the inference that the car's occupants were engaged 

in the sale, rather than casual use, of drugs." Id. at 518. 

Moreover, Cannon recognized that "[w]e have often held that 

firearms, too, are probative of an intent to distribute narcotics" 

and "the district court was not required to turn a blind eye to 

the logical relationship between the presence of multiple packages 

of drugs, the loaded firearm, and the large amount of cash in 

determining whether the drugs found in the [car] were intended for 

distribution or personal use." Id. Based on "the totality of 

evidence before the district court," Cannon held "that [the 

defendant]'s possession of the firearm had the potential to 

facilitate the offense of distribution -- by emboldening the 

enterprise, aiding the collection of a drug debt, or in any number 

of foreseeable ways -- and was therefore 'connect[ed] with' that 

felony for purposes of the enhancement." Id. at 519 (second 

alteration in original); see also Peterson, 233 F.3d at 111 (noting 

that "'the usual case' in which the Guideline applies is one in 

which the defendant 'had the firearm available to protect his 

supply of drugs'" (quoting Thompson, 32 F.3d at 8)). 

Here, Reyes-Torres was found with a machine gun, dozens 

of rounds of ammunition, several baggies and a vial of narcotics, 

and a total of several hundred dollars and two cell phones, even 
- 17 - 

though he lacked stable employment and was financially supported 

by his parents. The nature of the firearm found -- a pistol 

modified to act as a machine gun -- together with the high-capacity 

magazines, mask, and radio scanner, which could be used to avoid 

police detection, demonstrate that this gun was not meant merely 

for personal protection. The drugs seized from Reyes-Torres's car 

were different than the one he reported using, and he tested 

positive only for marijuana after being arrested. Although ReyesTorres does not have a history of drug distribution arrests and 

convictions like the defendant in Cannon, see 589 F.3d at 518-19, 

the photographs taken from Reyes-Torres's cell phone show that he 

was "no stranger to the drug trade." Id. at 517. The totality of 

the evidence confirms that the machine gun and ammunition had the 

potential to facilitate the offense of drug distribution which 

justified application of the enhancement under U.S.S.G. 

§ 2K2.1(b)(6).7

B. The Sentence Is Substantively Reasonable 

Reyes-Torres's only challenge to the substantive 

reasonableness of his sentence is that the district court 

inappropriately applied the enhancement which resulted in a higher 

total offense level and Guidelines Sentencing range. We review a 

7 We note that the government has unnecessarily 

complicated this case by presenting on appeal an obvious argument 

as to drug trafficking which was not made explicitly to the 

district court. 
- 18 - 

preserved challenge to the substantive reasonableness of a 

sentence under an abuse of discretion standard. United States v. 

Viloria-Sepúlveda, 921 F.3d 5, 8 (1st Cir. 2019). "A sentence is 

substantively reasonable so long as the sentencing court has 

provided a 'plausible sentencing rationale' and reached a 

'defensible result.'" Sayer, 916 F.3d at 39 (quoting United States 

v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)). 

Having found that the district court properly applied 

the sentencing enhancement, we reject the defendant's challenge to 

the substantive reasonableness of his sentence, which is 

predicated on that alleged error. See United States v. MangualRosado, 907 F.3d 107, 111 n.1 (1st Cir. 2018). Furthermore, ReyesTorres's sentence of forty-two months is within the applicable 

Guidelines range after the enhancement and so is presumptively 

reasonable. See United States v. Llanos-Falero, 847 F.3d 29, 36 

(1st Cir. 2017). The district court also provided a plausible 

sentencing rationale based on the seriousness of the offense and 

the dangerous nature of the weapon involved. The mid-Guidelinerange sentence ultimately imposed was a defensible result which 

balanced the need for deterrence with the personal characteristics 

of Reyes-Torres, including his status as a first-time offender.

Reyes-Torres's sentence is both procedurally and 

substantively reasonable. 

Affirmed.