United States Court of Appeals

For the First Circuit

No. 01-1129

UNITED STATES,

Appellee,

v.

DAVID MOLLOY,

Defendant, Appellant.

No. 01-2700

UNITED STATES,

Appellee,

v.

JASON ZAWADZKI,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

 Lipez, Circuit Judge,

Coffin and Stahl, Senior Circuit Judges.

Aziz Safar for appellant Molloy.

Mark L. Stevens for appellant Zawadzki.

John T. McNeil, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, was on brief, for

appellee.

March 31, 2003
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LIPEZ, Circuit Judge. In this appeal we confront the

narrow question of whether the district court clearly erred in

imposing a four-level sentencing enhancement for two defendants

pursuant to section 2K2.1(b)(5) of the United States Sentencing

Guidelines (the "Guidelines"). This provision requires courts to

increase a defendant's base offense level by four points if the

defendant "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." The items at

issue are two live, high-explosive M-67 military fragmentation hand

grenades that were stolen from a United States military facility

and delivered to defendant Jason Zawadzki. 

Zawadzki and co-defendant David Molloy were apprehended

by federal law enforcement officials after attempting to sell the

hand grenades to a government informant. Both subsequently pled

guilty to one count of possession of unregistered destructive

devices and one count of transferring unregistered destructive

devices. Zawadzki, who at the time was serving a state sentence of

home confinement, also pled guilty to a third count of felon-inpossession of firearms and ammunition. For the reasons that

follow, we conclude that the district court's decision to impose

the four-level enhancement for both defendants is well grounded in

the factual record and the relevant case law. Accordingly, we

reject the appellants' claims and affirm the decision below.
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I. 

In December 1999, Zawadzki arranged to obtain two M-67

hand grenades from David Joseph, a convicted felon who had earlier

been deported to Canada. Joseph instructed his girlfriend to

deliver the hand grenades to Zawadzki, who was confined to his home

and required to wear an electronic monitoring device under the

terms of his sentence for a prior state felony conviction. As part

of his sentence, Zawadzki was also required to attend Alcoholics

Anonymous meetings at the Essex County House of Correction Farm

program. At one meeting, Zawadzki offered to sell the hand

grenades to another convicted felon named David Santiago (a.k.a.

"Tucky") whom the defendant knew to be a member of a street gang in

Lawrence, Massachusetts, called the Outlaws. 

After Tucky declined to purchase the grenades, Zawadzki

contacted Molloy to request his assistance in finding a buyer.

Molloy informed Zawadzki that he knew a member of the "Latin

Gangsta Disciples" street gang named Luis Colon (a.k.a. "Slot") who

would potentially be interested in purchasing the grenades for up

to $1,000. The Disciples were declared enemies of the Outlaws who

trafficked drugs and stolen weapons in North Lawrence. Molloy's

knowledge of Slot's involvement with the Disciples stemmed from a

several-month friendship between the two, during which time Molloy

assisted Slot in selling a 9 mm handgun to a friend of Molloy's

named "LaPoint." Molloy was also aware that Slot frequently
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socialized with Victor Laboy (a.k.a. "Papito Bosero"), a known

leader of the Disciples, and that Slot had been shot by Leslie

Carabello, a member of the Outlaws. Unbeknownst to Molloy,

however, Slot had recently become a cooperating witness for the

Massachusetts State Police. 

On January 23, 2000, Molloy approached Slot at a party in

Lawrence and offered to sell him the two hand grenades. Molloy

appeared anxious to unload the grenades, and attempted to

accelerate the pace of negotiations by informing Slot that if he

could not commit to purchasing the hand grenades quickly, Molloy

would instead sell them to Tucky, whom both parties knew to be

involved with the rival Outlaws. Slot left the party and

telephoned Massachusetts State Trooper Frank Hughes, who instructed

Slot to make the purchase the next day. On January 24, 2000, Slot

contacted Molloy and, in a telephone conversation that was recorded

by law enforcement agents, elicited from Molloy that the hand

grenades belonged to a third party and that Molloy would need to

retrieve them before the sale. During the conversation Molloy

agreed to sell the grenades for $1200 -- $700 due at the time of

purchase, and $500 to be paid once Slot verified the authenticity

of the grenades. Slot agreed to meet Molloy at a location near

Molloy's residence later that evening to complete the transaction.

After the phone conversation, the police provided Slot

with $700 in marked bills and equipped him with a wire. That
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evening, after several follow-up phone conversations, Slot drove to

the agreed location, which turned out to be Zawadzki's residence.

Molloy obtained the grenades from Zawadzki and gave them to Slot in

exchange for the initial $700 payment. On January 25, after law

enforcement officials confirmed that the hand grenades were "live"

and authentic, Slot met with Molloy and paid him the outstanding

balance of $500. The next day, Molloy approached Slot and offered

to sell him other stolen weapons, including a pump-action shotgun

and two handguns. 

Between January 27 and February 1, Slot and Molloy had

several conversations monitored by law enforcement agents to

negotiate the price of the weapons and to make arrangements for the

exchange. These recorded conversations, coupled with the earlier

recorded discussions regarding the hand grenades, are the main

subject matter of the dispute. The conversations reveal that Slot,

prior to his purchase of the hand grenades, invented a fictitious

third-party buyer for whom he was supposedly purchasing the

weapons. Slot portrayed this fictitious buyer as a hostile

individual with substantial knowledge of hand grenades, ostensibly

to convince Molloy that the buyer would react negatively if Molloy

attempted to sell him fake grenades. In one January 24 telephone

conversation, Slot remarked that the fictitious buyer "don't want

to get stiffed for that bullshit cuz he already got stiffed once,"
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and represented that "this guy wants them you know . . . . He

collects them shits I guess." 

On the basis of these conversations and the recovered

hand grenades, the police obtained a search warrant for Zawadzki's

residence. While executing the warrant, the police recovered a

pump-action shotgun, two handguns, and $200 of the cash payment

that Slot made to Molloy. Molloy was subsequently arrested, and

the two co-defendants eventually pled guilty to the aforementioned

charges.

II.

To impose the four-level sentencing enhancement for

Molloy and Zawadzki, the court was required to find, by a

preponderance of the evidence, that the recorded conversations

revealed that the co-defendants had "knowledge, intent, or reason

to believe" that the hand grenades sold to Slot would "be used or

possessed in connection with another felony offense." U.S.S.G. 

§ 2K2.1(b)(5). The court concluded that the requirements of

section 2K2.1(b)(5) were satisfied as to Molloy: "The tenor of the

transcripts and all the circumstances convince the Court by a fair

preponderance of the evidence that Mr. Molloy thought these

grenades were going to be used in a felony." The court similarly

imposed a four-level enhancement for Zawadzki, concluding that

"there is significant evidence to warrant the inference that Mr.

Zawadzki . . . in fact had reason to believe that the grenades
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would be used or possessed in connection with another felony

offense; and further, I find by a fair preponderance of the

evidence that he did so believe."

Zawadzki and Molloy advance separate theories of error in

the district court's sentencing determinations. The government

concedes that Zawadzki had no knowledge of the fictitious thirdparty buyer invented by Slot; Zawadzki, in turn, argues that the

government's proof that the defendants sold the grenades to a known

gang member was by itself insufficient to trigger a four-level

enhancement under U.S.S.G. § 2K2.1(b)(5). Molloy, on the other

hand, insists that he had "reason to believe" that Slot would

convey the grenades to an ex-marine who did not intend to use them

in a felony, but wished to purchase them for his personal

collection. We examine each of these arguments in turn, mindful of

the deference that we accord a district court's factual findings:

"If a party assigns error to a factual finding made at sentencing,

we review the finding for clear error. In doing so, we ask only

whether the court clearly erred in finding that the government

proved the disputed fact by a preponderance of the evidence."

United States v. Powell, 50 F.3d 94, 102-03 (1st Cir. 1995)

(internal citation omitted). 

1. Zawadzki's claim of error

At Zawadzki's sentencing hearing, the government conceded

that its "best evidence" supporting the court's application of
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U.S.S.G. § 2K2.1(b)(5) was "that Mr. Zawadzki was selling to a gang

member in the Lawrence area with knowledge of what was going on in

the Lawrence area but no specific knowledge of any specific

felony." Yet as Molloy and Zawadzki concede, we have previously

interpreted section 2K2.1(b)(5) as requiring a four-level

enhancement even where the defendant had no knowledge of a specific

felony involving the transferred weapons:

While appellant argues that the section

requires knowledge of some specific offense,

the use of the word "another" as the sole

modifier of "felony offense" does not command

such a narrow reading . . . . The First

Circuit has looked at U.S.S.G. § 2K2.1(b)(5)

and interpreted it to require an enhancement

where the defendant was not aware of a

specific felony offense to be committed with

transferred guns.

United States v. Cutler, 36 F.3d 406, 408 (4th Cir. 1994) (citing

United States v. Brewster, 1 F.3d 51, 54 (1st Cir. 1993)); see also

United States v. Nunez, 146 F.3d 36, 40 (1st Cir. 1998).

However, Zawadzki insists that Slot's purported status as

a gang member, without more, does not permit a four-level

enhancement under U.S.S.G. § 2K2.1(b)(5) as a matter of law.

Superficially, he finds some support for this proposition in our

prior cases. In Nunez, for instance, we upheld the district

court's imposition of a four-level enhancement where the buyer

approached the defendant and explicitly told him that he needed

some pipe bombs "to blow up" a rival gang. Nunez, 146 F.3d at 37.

Similarly, we determined in Brewster that the court was justified
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in levying a four-level enhancement where the defendant sold an

undercover police officer a handgun, and, within the hour, sold the

same officer a small amount of crack cocaine. Brewster, 1 F.3d at

52. There we concluded that "appellant sold the gun with reason to

believe that his customer planned to use it in connection with drug

trafficking, and a sufficient nexus exist[ed] between the weapon

and the drug trafficking to warrant imposition of the enhancement."

Id. at 54. Here, only Slot's history of gang activity connects the

sale of the grenades to the commission of a future felony. 

Significantly, however, Nunez and Brewster do not purport

to establish minimum evidentiary requirements for the application

of section 2K2.1(b)(5). As the government persuasively argues, the

simple fact that Zawadzki and Molloy were selling lethal explosive

devices with almost no non-felonious uses distinguishes this case

from much of the authority cited by appellants. Indeed, the

Supreme Court observed in another context that "one would hardly be

surprised to learn that possession of hand grenades is not an

innocent act. They are highly dangerous offensive weapons."

United States v. Freed, 401 U.S. 601, 609 (1971) (footnote

omitted). Accordingly, one could hardly fault the district court

for its common sense conclusion that individuals who transfer

"offensive" and "dangerous" M-67 hand grenades to a known gang

member have reason to believe that the weapons will be used in a

subsequent felony. See United States v. Sklar, 920 F.2d 107, 112
1Zawadzki briefly challenges his sentence on due process

grounds, arguing that the Supreme Court's decision in Apprendi v.

New Jersey, 530 U.S. 466 (2000), requires the government to "allege

in the indictment and prove to the jury each fact that supports an

enhancement under the sentencing guidelines." According to

Zawadzki, the district court violated the rule of Apprendi by

exposing him to a greater statutory maximum sentence based on

factual findings (made pursuant to U.S.S.G. § 2K2.1(b)(5)) that

were not submitted to a jury. Frankly, in the absence of any

elaboration of this argument, we fail to understand how the

district court's application of the four-level enhancement exposed

Zawadzki to a greater statutory maximum sentence. 

In any event, the defendant concedes that on numerous

occasions we have rejected Apprendi challenges in cases like this

one, "where the sentencing enhancements do not result in a sentence

in excess of the statutory maximum." See United States v. LopezLopez, 282 F.3d 1, 22-23 (1st Cir. 2002); United States v.

Robinson, 241 F.3d 115, 121-22 (1st Cir. 2001); United States v.

Caba, 241 F.3d 98, 101 (1st Cir. 2001). Cognizant of this binding

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(1st Cir. 1990) ("The law is not so struthious as to compel a

judge, in making factbound determinations under the sentencing

guidelines, to divorce himself or herself from common sense or to

ignore what is perfectly obvious."). 

The defendants point to nothing in the record that

counters the validity of this inference. In fact, Zawadzki's

counsel conceded at oral argument that the defendant attempted to

peddle the grenades to members of two rival street gangs in the

Lawrence area with a history of violent interaction. The

defendants' efforts to solicit buyers with a predilection for

violent behavior further vindicate the court's U.S.S.G. 

§ 2K2.1(b)(5) determination. In the end, we find no clear error in

the judge's reliance on circumstantial evidence and common sense to

support the four-level enhancement.1 
adverse precedent, Zawadzki expressly raises the Apprendi issue

before us only to preserve it for possible Supreme Court review.

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2. Molloy's claim of error

Molloy asserts that "[l]eading up to the hand grenades'

sale, [Slot] continually maintained that the third party purchaser

was merely a collector who was an ex-marine . . . . His

representation to the appellant was that as a collector, the

purchaser dismantled them." At sentencing the judge expressly

rejected this argument: 

I base the finding on this fictitious

character that the undercover informant Slot

made up. It just strains credulity in these

circumstances, where these grenades are being

passed about among street gangs, that Mr.

Molloy in good faith thought some sort of outof-state collector was going to get the

grenades. 

On appeal, Molloy attempts to resuscitate the "ex-marine"

theory by pointing to two recorded conversations in which Slot

indicated to Molloy that the fictitious buyer was an ex-marine. The

record indicates that Slot did not even convey the fictitious

buyer's identity until he picked up the hand grenades. Molloy then

seemed apathetic about the prospect of selling the grenades to a

collector as opposed to a gang member, exclaiming "big deal" before

changing the subject of the conversation. The second conversation,

which occurred on January 28 after the completion of the hand

grenade sale, is more illuminating:
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Molloy: I want to see that dude use the grenades . .

. That would be shit to see someone throw

the grenades . . . Boom

Slot: Yeah but . . . you know what I'm saying he

just grabs them . . . That's what he does he

got four of them dog . . . All different

kinds

Molloy: Are the other ones he has different than

those ones?

Slot: Yeah he got two of those same and he got

some other ones are different they look like

the fuckin they got like carbine in the

middle in shit you know what I'm saying

Molloy: That dude will he buy pipe bombs and shit

Slot: Nigga yo this motherfucker be making his own

shit yo

Molloy: Oh he make pipe bombs and stuff

Slot: He makes yo, yo whatever pipes . . . You

know what I'm saying they're ready to blow

shit up . . . This guy's a freakin used to

be an ex-marine

Molloy: He's one of those fucking army nuts

Slot: He's a fucking nut dude . . . I'm afraid to

be around that motherfucker, dog

As a threshold matter, Molloy argues that because this

conversation occurred after the sale of the hand grenades, "the

comments on use were inadequate indicators of the appellant's state

of mind at the time of the sale." We disagree. As the government

observes, "the enhancement focuses on the defendant's state of mind

at the time he possessed or transferred the grenades." See Nunez,

146 F.3d at 40; United States v. Gilmore, 60 F.3d 392, 394 (7th Cir.
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1995). To the extent that Molloy's state of mind at the time of

sale was ambiguous, his post-sale comments are a useful and relevant

indicator of whether, prior to the sale, he had reason to believe

that Slot would convey the grenades to a collector who never

intended to use or possess them in connection with another felony

offense. Cf. James v. Marshall, No. 02-1352, slip op. at 11-12 (1st

Cir. March 14, 2003) (where defendant's alleged invocation of

Miranda rights is ambiguous, court may consider defendant's postinvocation statements to discern his state of mind at the time of

the initial request). The district court is entitled to scrutinize

the record in its totality to determine whether a four-level

enhancement under U.S.S.G. § 2K2.1(b)(5) is warranted. See United

States v. James, 172 F.3d 588, 594 (8th Cir. 1999). Hence, we find

no clear error in the district court's consideration of Molloy's

post-sale statements during sentencing. 

Those statements, along with numerous others in the

record, provide ample support for the district court's conclusion

that Molloy had reason to believe that the grenades would be used

in connection with another felony offense. Slot did not portray the

fictitious ex-marine as a benign hobbyist with an academic interest

in military artifacts, but as "a fucking nut" who manufactured pipe

bombs and other weapons and was "ready to blow shit up." Indeed,

Slot's characterization of the ex-marine seemed to persuade Molloy

that the third-party buyer might detonate the weapons, prompting
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Molloy to exclaim that he "want[ed] to see that dude use the

grenades." In the end, the violent persona of the fictitious exmarine and Slot's dogged persistence in ensuring that the hand

grenades were live and authentic provided Molloy with a reason to

believe that the grenades would be used in a subsequent felony --

a belief evidenced by Molloy's documented excitement at the

possibility that the grenades would be detonated. 

Molloy also asserts for the first time on appeal that

because Slot portrayed the fictitious purchaser as the owner of

numerous explosive devices, the buyer's procurement of two

additional grenades could not have been "causally or logically"

related to a future felony offense. We review for plain error. As

the government recognizes, Molloy is essentially arguing that

U.S.S.G. § 2K2.1(b)(5) "is inapplicable unless the evidence

establishes that the defendant has reason to believe that the 'other

felony offense' would not be committed absent the transfer." We

agree with the government that this position is indefensible in

light of our prior decisions construing the phrase "in connection

with" broadly: "Although there must be a causal or logical relation

or sequence between the possession and the related offense . . . we

will find that a firearm has been used in connection with an offense

if the possession has the potential to aid or facilitate the other

crime." United States v. Peterson, 233 F.3d 101, 111 (1st Cir.

2000) (internal quotation marks omitted). Molloy's excited comments
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to Slot reveal that he had reason to believe that the M-67 grenades

would be detonated in the commission of a subsequent felony

notwithstanding the ex-marine's existing collection of grenades.

Hence there was no error, let alone plain error, in the district

court's implicit determination that sufficient causation existed to

warrant the four-level enhancement for Molloy.

III. 

For the foregoing reasons, we decline to overturn the

district court's imposition of four-level sentencing enhancements

for both defendants. The decision below is affirmed.