# United Stat es Court of Appeals For the First C ircuit

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. McN eil , Assistant United States Attorney, with whom Michael J. Sullivan , United States Attorney, was on brief, for appellee.

March 31, 2003-2- LIPEZ, Circu it 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 possessedin 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 St ates m ilitary 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 ha nd gre nades to a government informant. Both subsequently pled guilty to one count of possession of unregistered destructive device s 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 firear ms and ammunition. For the reasons that follow , we c onclude 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.-3- I. I n December 1999, Zawadzki arranged to obtain two M-6 7 handgrenades from David Joseph, a convicted felon who had earlier been deported to Canada. Joseph instructed h is gir lfriend to deliver the hand grenades to Zawadzki, who was confined to his home andrequired 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 requi red 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 Davi d 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 contactedMolloy to request his assistance in finding a buyer. Molloyinformed 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 traffickeddrugs and stolen weapons in North Law rence. Molloy's knowledge of Slot's involvement with the Disciples stemmed from a several-month friendship between the two, during which time Molloy assistedSlot in selling a 9 mm handgun to a friend of Molloy's named"LaPoint." Molloy was also aw are that Slot frequently-4-

socializedwith Victor Laboy (a.k.a. "Pa pito 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 becom e 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 han d grenades . Molloy appearedanxious to unload the grenades, and attempted to accelerate the pace of negotiations by informing Slot that if he could not co mmit to purchasing the hand grenades quickly, Molloy wouldinst ead sell them to Tucky, whom both parties knew to be involvedwith the rival Outlaws. Slot left the party and telephonedMassachusetts State Trooper Frank Hughes, who instructed Slot to make the purchase the next day. On January 24, 2000, Slot contactedMolloyand, in a telephone conversation that was recorded by law enforcement agents, elicited f rom Mo lloy that the hand grenades belonged to a third par ty an d that Molloy would need to retrieve them before the sale. During the conversation Molloy agreedto se ll the g renades 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 provide d Sl ot with $700 in marked bills and equipped him with a wire. That-5-

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

ex chang e for the initial $700 payment. On January 25, after law enforcement officials confirmed that the hand grenades were "live" andauthentic, 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

severa l 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 recordeddiscussions regarding t he h and 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-partybuyer for whom he was supposedly purchasing the weapons. Slot portrayed this fictitious buyer as a hostile individual with substantial knowledge of handgrenades, 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,"-6-

and r epresented that "this guy wants them you know . . . . H e collects them shits I guess."

On the basis of these conversations and the recovered handgrenades, the police obtained a search warrant for Zawadzki's residence. While executing the warrant, the police recov ere d a pump-action shotgun , t wo 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 t he ev idence, 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 th at 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 imposeda four-level e nhanc ement for Zawadzki, concluding that "there is significant evidence to warrant the infe rence that Mr. Zawadzki . . . in fact had reason to believe that the grenades-7-

wouldbe used or pos ses sed 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 ficti tious thirdpartybuyer 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 th e o ther hand, insists that he had "reason to believe" that Slot would conveythe 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 partyassigns 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 provedt he dis puted fact by a preponderance of the evidence." UnitedStates 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 th at i ts "best evidence" supporting the court's application of-8-

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 interpretedsection 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) andinterpreted 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 UnitedStates 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 purportedstatus as

a gang member, without mor e, does not permit a four-level enhancement under U.S.S.G. § 2K2.1(b)(5) as a ma tter of law. Superficially, he finds some support for this propositi on in our prior cases. In Nunez , for instance, we upheld the district court's imposition of a f our- level enhancement where the buyer approachedthe defenda nt 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-9-

in levying a four-le vel 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] betw een the weapon andthe 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 persuasivelyargues, the simple fact that Zawadzki and Molloy were selling lethal explosive devices with almost no non-felonious uses distinguishes this case fromm uch of th e authority cited by appellants. Indeed, the Supreme Court observed in another context that "one would hardly be surprisedto learn that possession of hand grenades is not an inn ocent act. They are highly dangerous offensive weapons . " UnitedStates v. Freed , 401 U.S. 6 01, 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, 1121 Zawadzki briefl y cha llenges 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 sentenci ng guidelines." According to Zawadzki, the district court viola ted th e rule of Apprendi by exposing him to a g reater 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 a ny 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 -10- (1st Cir. 1990) ("The law is not so struthious as to compel a judge, in m aking 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 t he r ecord that counters the validity of this in ferenc e. In fact, Zawadzki's counsel conceded at oral argument that the defendant attempted to peddle the grena des 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. 1adverse precedent, Zaw a dzki expressly raises the Apprendi issue

before us only to preserve it for possible Supreme Court review. -11- 2. Molloy's claim of error Molloy asserts that "[l]eading up to the hand grenades' sale, [Slot] continually maintained that the thirdparty purchaser

was merely a c ol lector who was an ex-marine . . . . His repr esentation to the appellant was that as a collector, t h e purchaser dismantl edthem." At sentencing the judge expressly rejected this argument:

I base the finding on this fictitious character t hat the undercover informant Slot made up. It just strains cr edulit y in these circumstances, where these grenades are being passedabout among street gangs, t hat Mr. Molloyin good faith thought some sort of outof- stat e collector was going to get the grenades. On appeal, Molloy attempts to resuscitate the "ex-marine" theoryby p oi nting to two recorded conversations in which Slot indicatedto Molloy that the fictitious buyer was an ex-marine. The recordindicat es that Slot did not even convey the fictitious buyer's identity until he picked up the hand grenades. Molloythen seemedapathetic about the prospect o f sellin g the grenades to a collector as opposed to a gang member, exclaiming "big deal" before changing the subject of the conversation. The secondconversation, which occurred on January 28 after the completi on of th e hand grenade sale, is more illuminating:-12- 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 t he ot her 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 f uckin 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 matte r, M olloy argues that because this conversation occurred after the sale of the hand grena des, "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.3dat 40; United States v. Gilmore , 60 F.3d 392, 394 (7th Cir.-13-

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 h ad re ason to believe that Slot would convey t he grena des to a collector who never intendedto 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) (whe re def endant's alleged invocation of Miranda ri ghts i s ambiguous, court may consider defendant's postinvocation statements to disc ern h is state of mind at the time of the initial request). The district court is entitledto scrutinize the record in its tota lity 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

n o clear error in the district court's consideration of Molloy' s post-sale statements during sentencing.

Those statement s, along with numerous others in the record, provide ample support for the district cour t's co nclusion that Mollo y 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 we apons and was "ready to blow shit up." Indeed, Slot's characterization of the ex-marine seemed to persuade Molloy that the third-party b uyer might detonate the weapons, prompting-14-

Molloyto exclaim that he "want[ed] to see that du de use the grenades." In the end, th e vio lent persona of the fictitious exmarine and Slot's dogged persistence in ensuring that the ha nd grenade s were live and authentic provided Molloy with a reason t o believe that the g renad es would be used in a subsequent felony --

a belief ev idence d by Molloy's documented excitement at the possibility that the grenades would be detonated.

Molloyalso asserts for the first tim e o n appeal that because Slot portrayed the fictitious purchaser as the o wner of

numerous explosive devices, the buye r's procurement of two additional grenades could not have been "ca usally or logically" relatedto a future felony offense. We review for plain error. As the government recognizes, M olloy is essentially arguing that U.S.S.G. § 2 K2.1(b )(5) "is inapplicable unless the evidence establishes that the defendant has reason to believe that the 'other felonyoffense' would not be committ ed absen t the transfer." We agre e wit h the government that this position is indefensible in light o f 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. Pe ters on , 233 F.3d 101, 111 (1st Cir. 2000) (internal quotation marks omitted). Molloy's excited comments-15-

to Slot reveal that he had reason to believe that the M-67 grenades wouldbe detonated in the commission of a subsequent felony notwit hs tanding the ex-marine's existing collection of grenades. Hence there was no error, le t alone pl ain 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 s en tencing enhancements for both defendants. The decision below is affirmed .