United States v. Nungaray

At a sentencing hearing, a district court may find, by a preponderance of the evidence, that an individual had constructive possession of firearms when that individual organized, facilitated, and was present at the sale of those firearms. Such a finding will result in an increased sentencing level per U.S.S.G. § 2K2.1(b)(1)(A).

Ruben Nungaray appealed the district court's decision to increase his sentence by two levels according to U.S.S.G. § 2K2.1(b)(1)(A). Nungaray, a convicted felon, pled guilty to one count of unlawful possession of a firearm. During the sentencing hearing, the court found, by a preponderance of the evidence, that Nungaray constructively possessed four other guns as well. Nungaray orchestrated the sale of four guns to an undercover police officer by contacting the officer, sending him a picture of the guns, negotiating a price, and designating a time and place to meet. During the meeting, Nungaray suggested they return to his home to pick up the guns but the officer refused. Nungaray then made two phone calls and had another individual drive up, put the guns in the officer's trunk, and drive away. After inspecting the guns, the officer paid Nungaray the agreed upon amount. Nungaray argued that he was simply a broker for the sale of guns and a finding of constructive possession was improper. Due to the facts above, the Court determined that Nungaray was an active facilitator of the gun sale rather than a mere bystander. Nungaray insists the Court should apply reasoning from a Seventh Circuit case in which no constructive possession was found for an individual trying, and failing, to facilitate a drug deal. The Court found the case distinguishable because the defendant was not present when the sale was finally made, whereas, Nungaray was the principal actor in the sale of the four firearms. Nungaray had constructive possession of the firearms, sufficient to result in an increased sentence as imposed by the district court. AFFIRMED