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

No. 03-2433 UNITED STATES OF AMERICA, Appellee,

v. DALE MCLEAN, Defendant, Appellant.

No. 03-2600 UNITED STATES OF AMERICA, Appellee,

v. MANOLIN FELIZ TERRERO, Defendant, Appellant.

No. 03-2646 UNITED STATES OF AMERICA, Appellee,

v. MAURICIO BERGUETTE-MERAN, a/k/a Manuel Enrique Heyliger Cruz, Defendant, Appellant.No. 04-1110 UNITED STATES OF AMERICA, Appellee,

v. JUAN ANTONIO NAVARRO, Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE [Hon. Gene Carter, U.S. District Judge ]

Before Boudin, Chief Judge , Torruella, and Howard, Circuit Judges .

EdwardS. MacColl , with whom Thompson, Bull, Furey, Bass & MacColl, LLC, P.A. was on brief, for appellant Dale McLean. Henry W. Griffin was on brief, for appellant M ano lin Feliz Terrero. Robert Ruffner , with w hom Vi ncent Kantz & Ruffner was on brief, for appellant Mauricio Berguette-Meran. WilliamMaselli was on brief, for appellant Juan Antonio Navarro. Margaret D. McGaughey , A ppel late Chief, with whom Paul D. Silsby , United States Attorney was on brief, for appellee.

June 9, 20051 Appellant Jorge Marques dismissed his appeal shortly after

this case was argued. -2-

HOWARD, Circuit Judge . These consolidated appeals arise froma drug trafficking conspiracy in Maine in which all the appellants pleaded guilty or were convicted at trial of conspiracy to distribute crack cocaine. Appellants Dale McLean, Manolin Feliz-Terrero, Juan Navarro and Mauricio Berguette-Meran all

c hallenge their sentences. 1 Navarro also challenges the par tia l denial of his motion to suppress. I. We present a brief overview of the facts, reserving a more detailed discussion for our analysis. A . The Conspiracy

From early summer of 2002 until a November 19, 2002 law enforcement raid, the appellants and a host of oth er ind ividuals participatedin a c rack distribution conspiracy in Sabbattus, Maine. Jorge Mattos of Springfield, Massachusetts, led the operation, along with his lieutenant, Janci Feliz. Through an intermediary named James Birkbeck, Mattos arranged to rent a room in a trailer belonging to McLean and Debra Schrock in Sabbattus. Mattos agreed to pay McLean, Schrock, and Birkbeck with cash or drugs. The conspiracy operated as follows.

Mattos would send two individuals to the McLean trailer to sell prepackaged crack. The seller s w ould stay for-3-

approximately one to two weeks. At the end of the period, they wouldbe relieved by a new two-person team, which would also serve

a one or two-week shift and then be relieved. Appellants Feliz and Berguette comprised one such team.

The trai ler had two bedrooms, each with an adjoining bathroom. McLean and Schrock shared what we w ill l abel the left bedroom; the drug-selling teams sent by Mattos stayed in the right bedroom. The teams retained control of the drugs and the drug proceeds, which they typically hid outside the trailer. Generally, Birkbeck, McLean or Schrock would deal with the drug purchasers and collect the purchase price. They would take the money to a team member in the right bedroom or adjoining bathroom and exchange the cash (or acceptable electronic merchandise such as game systems and televisions) for crack. Birkb eck, M cLean, or Schrock would then deliver the crack to the purchaser, keeping an agreed upon portion of crack or cash for himsel f or herself. Birkbeck, McLean, and Schrock regularly smoked crack during the relevant per iod, and McLean ran up a drug debt beyond his agreed remuneration. By late in the conspiracy, McLean became largely incapacitated due to heavy crack usage and spent most of his time in the left bedroom.

Mattos used Navarro, his nephew, as his link wit h t he conspirators in Maine. As Mattos' representative, Navarro managed the assets of the conspiracy, contro lled the local participants, andresupplied the drug-selling teams. Upon being notified by the-4-

teamthat the crack supply was running low, Navarro would go to Maine with additional supply and take the sales proceeds back to Mattos. Navarro also managed the communications between the other parti cipants, serving as a translator between the drug-selling teams (whose members were Dominican and spoke Sp anis h) and Birkbeck, McLean an d S chrock (who spoke English). In addition, Navarro directed Birkbeck, McLean and Schrock, instructing Schrock to keep the operation "safe" and to handle the customers (so that the drug-selling teams could remain hidden), and McLean to serve in Birkbeck's stead after Birkbeck's arrest. Significantly, Navarro also served as enforcer, once tracking down an individual who stole drugs and cash from the operation, and thre ate ning Schrock with death if she ever "ratted" out the conspirators. Navarro also threatened(once at gunpoint) to k ill McLean's daughter, Crystal McLean, when McLean resisted Navarro's directive tha t he replace Birkbeck, andwhen McLean failed to pay off his mounting drug debt.

In early November, Marques, Crystal McLean's fiancé, came to live at the trailer in response to the threats against her. He agreedt o part icipate in the conspiracy by helping to service McLean's customers until McLean's debt to Navarro was paid. During this period, either Marques or Crystal was required to remain at the trailer at all times, as security for McLean's debt. Marques' arrival in November changed the living arrangements in the trailer. While the narcotics transactions still took place in the right-5-

bedr oomand adjoining bathroom, the drug-selling teams no longer slept there. Instead, they permitted Marques and Crystal to use the right bedroom(beginning a few days before the raid), while the teams slept in the living room.

Acooperating individual ("CI") began making purchases fromthe trailer in October. These purchases and related phone calls were monitored by law enforcement. During an October 28, 2002 p urchase, M cLean told the CI that the members of the drugselling team were interested in acquiring 9 mm handguns, and that McLean himself was interested in the CI's .357 magnum revolver. At

a November 4, 2002 purchase, McLean again asked the CI about the 9

mmpistols in which the drug-selling t eam ha d expressed an interest. Law enforcement agents raided the trailer on November 19, 2002. They arrested Marques, Crystal, and Feliz in the right bedroom, McLean in the left bedroom, and Berguette outside the trailer. In the right bedroom, the agents found 5 rocks of crack, a .22 caliber handgun, and $1820 in cash. An additional $7900 in cash was found in a crawl space under the trailer. B. District Court Proceedings

McLean, Feliz and Bergue tte ea ch pleaded guilty to conspiring to distribute 50 or more grams of cocaine base and agreedto cooperate with the government. Marques pleaded guilty to conspiring to distribute 5 or more grams of cocaine base and also2 Schrock andBirkbeck also pleaded guilty. Crystal McLean was

not charged. -6- agreedto cooperate. 2 McLean was sentenced first, and Marques, Feliz and Berguette were sentenced shortly t here after in a consolidatedproceeding. All rece ived two-level increases for possession of a firearm under U.S.S.G. § 2D1.1(b)(1), and all were deniedthe benefit of safety valve provisions, set forth at 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, because of the presence of the .22 ca liber handgun. See 18 U.S.C. § 3553(f)(2)(safety valve unavailable if defendant "possess [e s] a firearm"); U.S.S.G. § 5C1.2(a)(2)(same). All were the beneficiaries of go vernme nt motion s fo r downward departures for substantial assistance. The sentencing ranges and net sentences after the downward departures

were as follows: Berguette, a range of 13 5-168 months, and an actual sentence of 95 months; Feliz, a range of 168-210 months, and

an actual sentence of 118 months; Marques, a range of 46-57 months, andan actual sentence of 24 months; and McLean, a range of 108-135 months, and an actual sentence of 44 months.

Navarro went to trial after the district court denied, in part, his motion to suppress certain statements that he made after his arrest. At trial, McLea n, S chrock, Marques, Birkbeck, Berguette, Feliz, and Crystal McLe an tes tified against him. The government introduced post-arrest statements made by Navarro that he had been a driver and translator for t he conspir acy, and his-7-

statement in which he identified the conspiracy's "boss." The jury foundhim guilty of co nspir ing to distribute 50 grams or more of crack cocaine. The district court found Navarro's guideline range to be 262 to 327 m o nths and sentenced him to 300 months' imprisonment. These appeals followed. II. Navarro challenges the partial denial of his motion to suppress his post-arrest statements. Navarro also challenges a sentencing enhancement for his role as a manager or supervisor in the conspiracy. McLean, Feliz, and Berguette raise a common issue: whether the district court erroneously denied them the benefits of the "safety valve" provision because they possessed a firearm during the course of the conspiracy. Navarro and Berguette also seek to raise issues based upon Blakelyv. Washington , 124 S. Ct. 2531 (2004). A. Motion to Suppress

Navarro argues that the district court erred in failing to suppress certai n of h is post-arrest statements. The relevant facts are as follows.

Navarro was arrestedafter the other appellants when he, along with Mattos and another conspirator, at tended Feliz's detention hearing. Navarro and his companions were identified to law enforcement officers by Crystal McLean, who was present in the courthouse. As he was led off to b e booked , Navarro became-8-

hysterical and made unprompted statements about his role as driver andtranslator, and about Mattos. He also offered to cooperate to avoid going to jail. While being booked by Marshal Folan and DEA Agent Rousseau, Navarro continued his outbursts and referred to an individual named "Tommy." Rousseau asked Navarro "Who is Tommy?" Navarro identified"Tommy" as Janci Feliz. He also volunteered that Mattos owned a restaurant called "El Creoleo" in Springfield, and that Mattos worked for a Latin King street gang member in New York named"Tommy." Navarro was not read his Miranda rights during the booking procedure.

Navarro movedto suppress his post-arrest statements and

was granted a hearing at which Folan, Rousse au and Navarro testified. Navarro clai med on direct examination that the officers, in particular Rousseau, were anxious to get him alone and interrogate him from the beginning. But on cross examination, he concededthat he was sobbing in the booking room and offered certain information in an eff or t to get released.

The magistrate judge who conducted the hearing concluded that everything said prior to the "Tommy" question was voluntarily offeredby Navarro in an attempt to secure his release. But he also concluded that the "Who's Tommy?" question violated Mir anda becaus e it was reasonably likely to elicit incriminating information. He thus recommended that the answer to the "Tommy" question and the statements that followed –- that Janci was-9-

"Tommy," that Mattos owned a Springfield res taurant called "El Creoleo," and that Mattos worked for a Latin King called "Tommy" -- be excluded. The trial judge accepted the recommendation in its entirety. Navarro argues that all of his statements should have been suppressed as obtained in violation of Miranda .

"We review a district court's findings of fact with respect to a suppression motion for clear error." United States v. Lopez , 380 F.3d 538, 543 (1st Cir. 2004). Our review of the district court's ultimate application of Miranda is de n ovo . United States v. Reyes , 225 F.3d 71, 75 (1st Cir. 2000).

If the defendant is not advised of his Miranda rights and has not validly waived them, "the pol ice are prohibited from interrogating him andany statements obtained in violation of this rule will be excluded from evidence at trial . . . ." Reyes , 225 F.3dat 76 (internal citation omitted). But there are two exceptions to the Miranda doctrine which are relevant here. First, there is a booking exception, which allows police officers to ask general background q uest ions (name, date of birth, etc.) while processing a newly arrested individual without advising him of his Miranda rights. Id. at 76-77. Second, "any statement made freely andvoluntarily without any compelling influences is, of cou rse, admissible in evidence." Lopez , 380 F .3d at 545 (internal quotation and citation omitted).3 In so ruling, we reject Navarro's entreaty that we disbelieve

the officers' testimony as to what happened. The district court acceptedthe officer's testimony and our r eview of the record persuades us that the court's credibility determinations were not clearly erroneous.

4 The relevant section of the guidelines provides that a defendant's offense level be increased by three levels based upon his role as a manager or supervisor in the criminal conduct if the crim inal conduct involved five or more participants or was otherwise extensive. See U.S.S.G. § 3B1.1(b). There is no dispute that there were five or more participants in the conspiracy. -10- In our view, the district court correctly concluded that these Miranda exceptions apply to Navarro's statements prior to being a ske d "Who's Tommy?" The only questions that the officers askedbe fore this question were booking questions, and the additional information that Navarro provided before the " T ommy" question was thus volunteered. And, as we hav e set forth above, the district court excluded all the statements made in response to the on e n on-booking question. The admission of Navarro's other statements did not violate Miranda . 3 B. Role in Offense Enhancement

Navarro argues that the evidence was insufficient to show that he held a managerial or supervisory position in the conspiracy. 4 He asser ts that the testimony of the Massachusetts conspirators shows that he was an ordinary p art icipant and that Mattos and Janci Feliz were the only leaders. He also asserts that the Maine conspirators' testimony regarding his threats was not credible.-11- The district court concluded that a three-level enhancement was appropriate because Navarro acted as a manager in the conspiracy by controlling its assets and directing at least one other participant. We review the district court's application of an enhancement based upon the defendant's role in the offense for clear error. See U nit ed States v. May , 343 F.3d 1, 7 (1st Cir. 2003. Navarro's claim that Mattos and Janci Feliz were the true leaders is a nonstarter. That Mattos and Janci were higher up the chain at the conspiracy's Massachusetts "headquarters" says nothing about whether Navarro acted as a "local" supervisor of the Maine conspirators, as the district court found. Navarro concedes that the Main e c onspirators regarded him as a supervisor, and the evidence overwhelmingly establishes that he supervised them.

Navarro's claim that the Maine conspirators' testimony regarding his threats was not credible also goes nowhere. The district court was able to observe the witnesses and assess their credibility far better than this court can from a cold record. See generally United States v. Marshall , 348 F.3d 281, 286 (1st Cir. 2003). Moreover, as we have said, the evidence shows that Navarro managedthe conspiracy's assets and directed the Maine conspirators in their duties. This evidence itself i s more th an enough to justify the enhancement.5 Section 2D1.1(b)(1) provides for a two level increase in the

offense level "[i]f a dangerous weapon (including a firearm) is possessed . . . ."

6 Shortly before the sentencing pro ceed ings in this case, we heldthat a co-consp irator 's possession of a firearm will not foreclose the application of the safety valve in favor of another co-conspirator who did not possess the firearm. See United States v. Figueroa-Encarnacion , 343 F.3d 2 3, 34-5 (1st Cir. 2003). The district court partially based its decision to deny McLean the safety valve on a theory of co-conspirator liability foreclosed by Figueroa-Encarnacion , but alternatively on the ground of McLean's constructive possession of the firearm. We focus on the court's alternative holding for present purposes. -12- C. Application of the Safety Valve

McLean, Feliz, and Berguette do not contest the propriety

o f the two-level enhancement that they received under U.S. S.G. § 2D1.1(b)(1), 5 but they challenge the district court's conclusion that they were ineligible for the safety valve. The court found, insofar as is relevant, 6 that the safety valve was unavailable be cause, in the court's view, each of the three conspirato r s possesse d the .22 caliber handgun during the course of the conspiracy. Appellants contend that only proof of " actual possession" is sufficient to foreclose the application of the safety valve, and that even if constructive possession is sufficient (as the court found), there was inadequate evidence to establish such possession.

As suggested above, the "safety valve" provision allows

a defendant to avoid the imposition of a mandatory minimum sentence

so long as the defendant and the offense meet certain enumerated7 The statute provides:

(f) Limitation on applicability of statutory minimums in certain cases.–Notwithstanding any other provisions of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Impor t a nd Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pursuant to guidelines promulgatedby the United States Sentencing Commission under section 994 of tit le 28 without regard to any statutor y m inimum sentence, if the court finds at sentencing , after the Government has been afforded an opportunity to make a recommendation, that -- (1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; ( 2) the defendant did not use violence or credible threats of violence or possess a firearmor other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not re sult in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has com plie d with this requirement. 18 U.S.C. §3553(f). -13- criteria. See18 U.S.C. § 3553(f). 7 The safety valve is8 As the government concedes, the fact that McLean, Feliz, and

Berguette all received downward departures ba sed on their cooperation which took them below the statutory minimum does n ot render this challenge moot. See generally United States v. Emery , 991 F.2d 907, 910 (1st Cir. 1993). The government also concedes that these appellants were otherwise eligible for the safety valve.

9 A ctual possession is generally defined as "the stat e o f imm ediate, hands-on physical possession." See United States v . Zavala Maldonado , 23 F.3d 4, 6 (1st Cir. 1994). -14- reproduced, essentially verbatim, in the guidelines, see U.S.S.G. § 5C1.2, which, if applicable, can garner the defendant a two-level reduction in offense level, see U.S.S.G. § 2D1.1(b)(6). But as we have stated, the safety valve is unavailable to a defendant who "possess[es] a firearm . . . in connection with the offense." See 18 U.S.C. § 3553(f)(2); U.S.S.G. § 5C1.2(a)(2). 8

The question therefore arises: What constitutes "possession" of a firearm within the meaning of the statute and the guideline? Appellants contend that only "actual" possession 9 of a gun will suffice; the government r es ponds that "constructive" possession is enough. We think that the government has the better argument. Adoption of the appellants' position would be inconsistent with our normal interpretation of the w ord "possession" in the guidelines. See United States v. McDonald , 121 F.3d7, 10 (1st Cir. 1997) (for purposes of U.S.S.G. § 2D1.1(b)(1), "any possession – actual or constructive – can trigger the twolevel increase.") Further, our cases have generally held that-15-

either actual or constructive possession suffices in the context of firearms, explosives, and narcotics offenses. See, e.g., United States v. Liranzo , 385 F.3d 66, 69 n. 2 (1st Cir. 2004) (18 U.S.C. § 922(g)(1)); UnitedStates v. Carlos Cruz , 352 F.3d499, 510 (1st Cir. 2003)(18 U.S.C. §924); United States v. Lopez-Lopez , 282 F.3d 1, 19 (1st Cir. 2002)(21 U.S.C. §841(a)(1)); United States v. Van Horn , 277 F.3d 48, 54-55 (1st Cir. 2002)(18 U.S.C. § 842(i)(1)); United States v. Smith , 292 F.3d 90, 99 (1st Cir. 2002)(18 U.S.C. § 922(g)(1)). Application of this same rule in this context makes abundant sense, as a defendant who, for example, has a concealed weapon strategically placed in a room where he conducts his drug business is no less dangerous than a defendant who conducts his business with a weapon on his person. We therefore hold that a defendant who has constructively possessed a firearmin connection with a drug trafficking offense is ineligible for the safety valve provisions set forth at 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2.

We turn now to whether there was sufficient evidence of

cons t ructive possession. This circuit has consistently defined constructive possession as follows: "Constructive possession

ex ists when a person knowingly has the power and inten tion at a given time to exercise dominion and control over an object either directly or through others." Carlos Cruz , 352 F.3d at 510; see also United States v. Nieves-Burgos , 62 F.3d 431, 437-38 (1st Cir. 1995); United States v. Torres-Maldonado , 14 F.3d 95, 102 (1st Cir.-16-

1994); United States v. Garcia , 983 F.2d 1160, 1164 (1st Cir. 1993). As is true of actual possession, constructive possession does not require actual ownership of the weapon, see Liranzo , 385 F.3dat 69, and can be sole or joint, see Van Horn , 277 F.3d at 54- 55. Moreover, the requisite know ledg e and intention can be inferredfrom circumstances, such as a defendant's control over the

area where the contraband is foun d (e.g ., defendant's home or automobile). See Zavala Maldonado , 23 F.3d at 7-8. But knowledge must be fairly inferable from the circumstances. See id . at 7 ; UnitedStates v. Booth , 111 F.3d 1, 2 (1st Cir. 1997)(knowing possession required); see also United States v. Weems , 322 F.3d 18, 24 (1 st Cir. 20 03)(mere proximity to a firearm is not enough to establish actual or constructive possession); Garcia , 983 F.2d at 1164 ("Mere presence or association with another who possessed the contrabandis, however, insufficient to establish constructive possession.") Thus, "[t]here must be some action, some word, or

so me conduct that links the individual to the contraband a n d indicates that he had some stake in it, some power over it." In re Sealed Case , 105 F.3d 1460, 1463 (D.C. 1997).

We turn now to each appellant's claim that the district court er red in concluding that he constructively possessed the firearm. McLean and Berguette primarily argue that the evidence is insufficient to ground a finding that they knew of the firearm's-17-

existence. Feliz concedes that he had knowledge of the firearm, but challenges the sufficiency of the evidence to ground a finding that he had the intention and power to exercise dominion and control over the weapon.

In r eview ing a district court's determination that a defendant failed to qualify for the safety valve, the standard of review varies depending upon whether the determination is based on conclusions of law or differential fact-finding. United States v. Matos , 328 F.3d34, 38 (1st Cir. 2003). If the former, our review is ple nary; if the latter, we review only for clear error. Id. Critical to our de ter mination is the evidence that the district judge considered as to each appellant. Appellants bear the burden of showing their entitlement to a safety valve reduction. See United States v. Richardson , 225 F.3d 46, 53 (1st Cir. 2000).

The evidence concerning the .22 caliber handgun came from three primary sources: Ma rque s' testimony at Navarro's trial; Agent LaChance's testimony at the consolidated sentencing hearing for Marques, Feliz, and Berguette; and Feliz's testimo ny at both Navarro's trial and the consolidated sentencing hearing.

Marques testified that McLean's brother traded the unloadedgun for crack about two days before the raid. He further testifiedthat McLean and Feliz were present during the transaction, and that he and McLean physically handled the gun. He recountedthat, after the exchange, he placed the gun in the closet-18-

of the right bedroom. At Navarro's trial, Feliz testified that he hadonly been shown the gun the night of the raid by Marques, that it was unloaded, that Marques put it in his bedroom closet, and that he did not know who owned it.

Agent LaChance testified that the unloaded .22 caliber pistol was found in the right bedroom in a small closet on the left side of the room. He further testified that a picture of Crystal McLean and two suitcases belonging to Berguette and Feliz were also foundin the closet. On cross-examination, LaChance clarified that the gun was not in plain view, and he conceded that at least Feliz's suitcase w as actuall y found in the living room. At the sentencing hearing, Feliz admitted that Marques had shown him the gun and that he knew where it was stored, but emphasized that he andBerguette were staying in the living room rather than the right bedroomin the days before the raid. He also testified that, at the time of the raid, his suitcase was in the living room in anticipation of his imminent departure for Springfield.

1. McLean's Arguments McLean primarily contends that the district court's decisi on cannot standbecause McLean had no knowledge of the firearm. The government responds that the evidence supp orts t he ruling because the gun was seized from the trailer McLean owned, the trailer was the focus of the dru g ope ration, McLean and four co-conspirators were arrested there, McLea n knew his co-10 McLean's presentence report (" PSR") recounted how the .22

caliber handgun had been found, how McLean had tried to obtain guns for the drug-selling teammembers and himself from the CI, and that Navarro had threatened Crystal at gunpoint.

11 We recognize that Mar ques ' testimony at Navarro's trial tendedto establish that McLean knew about andphysically possessed the firearm. How ever, there is no indication in the record that the sentenc ing judge, who also presided over the Navarro trial, considered or relied on this evidence in any manner in sentencing McLean. The government did not make this evidence part of McLean's sentencing record and did not argue it in any fashion below or on appeal; thus defense counsel had no opportunity to challenge it. Therefore, we will not consider this evidence in reviewing McLean's instant appeal.

12 Moreover, even if McLean had knowledge of the gun, we question whether there is a basis in the record for finding that he hadthe power to exercise dominion and control over it. We have -19- conspirators wanted to acquire guns, and McLean knew that some of his co -con spirators were armed because they had threatened his daughter at gunpoint. 10

In our view, the record reveals insufficient grounds for concluding that McLean had knowledge of the .22 caliber pis tol. 11 He did not stay in the room where the weapon was found. Instead, at this point in the conspiracy, McLean spent most of his time in his room. Moreover, becau se th e pistol was not acquired until a few days before the raid, it could not have been the weapon used to threaten Crystal McLean in October. Finally, that McLean was aware that his co-conspirators were interested in 9 mm pistols is not sufficient evidence that McLean knew that his co-conspirators had actua lly acqui red a .22 caliber pistol. In sum, we think the inference of knowledge too tenuous to stand. 12notedthat, when McLean balked at taking Birkbeck's place, Navarro

threatened his daughter at gunpoint. Moreover, both his daughter andfuture son-in-law were held as de facto prisoners for McLean's drug debt. Significantly, the district court speci fica lly found that McLean was not in control of the drugs or proceeds located in the same bedroom of the trailer a s the gun. These undisputed facts, coupled with McLean's increased drug use and withdrawal into his room late in the conspiracy, strongly support a conclusion that McLean did not exercise dominion and control over h is coconspirators or their property.

13 As to kno wledge, only Birkbeck's statement in the PSR ties Berguette directly to the firearm. But Berguet te cha llenged the admissib ili ty of the Birkbeck statement, asserting that the gover nment never provided the relevant notes to counsel and that the government represented that it would not rely on the Birkbeck statement at sentencing. Berguette's counsel renewed this contention on appeal. So far as the record discloses, this issue was not expressly resolved in the district court. However, a fair reading of the sente ncin g transcript reveals that the Birkbeck statement was not considered. First, the only statements referred to at sentencing were those of LaChance, Marques, and Feliz; it is unlikely that Birkbeck's highly incriminating statement would have been forgotten by both sides. Second, the government only argued constructive possession at sentencing, even though Birkbeck's statement, if credited, demonstrates actual possession. -20- 2. Berguette's Arguments Berguette, like McLean, contends he did not have constructive possession of the .22 caliber handgun because he was

unaware that the firearm existed. The government argues that such knowledge can be inferred because Berguette stayed in the room in which the gun was found, his suitcase was found in the closet with the gun, and (as recounted in the PSR) Birkb eck stated that the Berguette had acquired the gun for himself.

As with McLean, there is inadequate evidence to infer that Berguette had ac tual knowledge of the gun. 13 That the drug--21-

selling teams sought 9 mmpistols does not by itself mean Berguette knew about this .22 caliber pistol. Further, Berguette did not live in the right bedroom during the period the that gun was in the trailer, and Agent LaChance's testimony was less than definitive as to the location of Berguette's suitcase. The most relevant circumstance is that Berguette participated in drug transactions in the right bedroom while the handgun was in the closet. But without more, this is not enough to show knowledge of the hidden gun. As

we have said, mere proximity to a firearm is inadequate to establish constructive possession. See Weems , 322 F.3d at 24. T his is true even if the defendant is near the gun in a room devotedto narcotics activity. See Torres-Maldona do , 14 F.3d at 103 (insufficient evidence to support conviction under 18 U.S.C. § 924(c) where there was no evidence that defendant had knowledge of gun hidden in tote bag on couch where defendant was sitting); United States v. Pena-Sarabia , 297 F.3d 983, 985 & 989 (10th Cir. 2002)(wife did not possess co-conspirator husband's gun, which he kept under the couple's bed with cocaine supply, because she had no knowledge that the gun existed).

3. Feliz's Arguments Like McLean and Berguette, Feliz argues that the record fails to establish that he had construct ive po ssession of the firearm. But unlike McLean and Berguette, Feliz concedes that he hadknowledge of the gun, and focuses on whether there was-22-

sufficient evidence to find that he met the other elements of constr uctiv e possession. The government responds that Feliz's knowledge of the weapon, his role in the conspiracy, and the ci rcumst ances of his arrest provide ample evidence to ground the district court's finding.

It is undisputed that Feliz knew about the gun, knew where it was hidden, engaged in drug sales in the right bedroom in close proximity to the hidden weapon, and was arrested in the right bedroom with crack and drug proceeds around him. As knowledge is uncontested, the issue is whether the record establishes that Feliz hadthe power and intention to exert dominion and control over the firearm. The power component is fairly straightforward. Feliz was close enough to the firearm to pick it up at any time. This is enough. See Van Horn , 277 F.3d at 55 (power element esta blished because defendant could reach into adjacent bucket and take physical possession of the explosives). That Marques was next to himandcapable of doing the same is irrelevant, as possession can be joint. See id . at 56 ("Exclusive access is not a prerequisite to possession . . . .")

The re is also a sufficient basis for inferring inten t . As a practical matt er, Feliz could well have intended to use the gun for protection in the event of trouble with one of the crack sales. Cf. Carlos-Cruz , 352 F.3d at 510 (defendants "hadpower and-23-

intention to retrieve the firearms if and when the upcoming drug transactions turned sour"). Further, the gun was among the proceeds of the drug sales, which Feliz was obliged to protect for Navarro. Cf. Zavala Maldonado , 23 F.3d at 8 (intent to store and transfer narcotics to confederate). In sum, Feliz's proximity to the weapon, coupled with his knowledge of the weapo n and role in the conspiracy, is more than sufficient to establish constructive possession. Cf. Nieves-Burgos , 62 F.3d at 438 (evidence of possession sufficient for conviction under 18 U.S.C. §924(c) where active participant in drug conspiracy arrested in hotel room with cash, narcotics, a nd firearm in tote bag two feet from where he sat). D. Booker Claims

Appellants Berguette and Navarro filed supplemental briefs before this case was argued challenging their sentences on Blakely grounds. Subsequent to argument, the Supreme Court issued its decision in United States v. Booker , 125 S. Ct. 738 (2005), and this court issued its decision in United States v. Antonakopoulos , 399 F.3d68 (1st Cir. 2005). As a consequence, we ordered further supplemental briefing.

Berguette argues that any Booker error should be deemed preservedbecause he sought a downward departure from the guidelines sentence, Booker error should be deemed a structural

error for which prejudice should be presumed, and there was a-24-

reason able probability that he would receive a lower sentence on remand. As we have al ready determined that Berguette's sentence must be vacated and remanded, we need not address his claims.

Navarro argues that he preserved any Booker error, in effect, by arguing in the district court that the evidence was inadequate to support an enhancement for Navarro's role in the offense. Alternatively, Navarro argues that the plain error standardis met because there is a reasonable probability that Navarro would receive a lower sentence on remand. In particular, Navarro argues that the district judge would be free under the new regime to give more weight to such factors as Navarro's youth, his prospects for rehabilitation, his lack of guidance, the malignant influence of his uncle, his responsibilities to his children, and the much lower sentences received by the other co-conspirators.

Aclaim of Booke r error is preserved "if the defendant below argued Apprendi or Blakely error or that the Guidelines were unconstitutional." Antonakopoulos , 399 F.3d at 76. Navarro raised

no such argument below. Thus, Navarro's only hope is to establish plain error.

To make such a showing, a defendant must demonstrate (1) an error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously impairs the fairness, integrity, or public reputation of judicial proceedings. Id. at 77. The first two prongs are met if the district court treated the Sentencing-25-

Guide lines as mandatory during sentencing. Id. As to the third prong, the defendant must show a "reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new 'advisory Guidelines' Booker regime." Id. at 75. The reasonable probability standard "is not met by the

mere assertion that the court might have given the defendant a more favorable sentence." Id. at 80. One category of claims that might warrant remand on plain error review is the one involving arguments that a mitigating factor existed b ut was not available for consideration under the "mandatory" Guidelines. Id. at 81. Navarro attempts to locate his argument within this category, but we are not persuaded.

First, Navarro actually made the mitigating arguments th at he now posits before the district court. He does not elabor ate ho w he could make them more convincingly on remand. Second, nothing in the transcript indicates that the court was in any way moved by these arguments. We note that Nav arro was sentencedin the middle of the guideline range, rather than at the bottom, and so the district court could have giv en h im a lower sentence under the old regime. That it did not do so speaks volumes. Also, the court stated that it believed the sentence to be justified by the vast quantities of drugs that the conspiracy injectedinto society, and by Navarro's "arrogant and malicious attitude toward the well-bei ng of others," as manifested by his-26-

"terr ible threats." There is nothing here that establishes a reasonable probability of a lower sentence on remand. III. For the reas ons s tated above, McLean and Berguette's sentences are vacated andtheir cases are remanded for resentencing in accordance with this opinion. Feliz's sentence is affirmed , and Navarro's conviction and sentence are affirmed .

So ordered .