United States v. Ruben Nungaray

Appellant Ruben Nungaray challenges the district court’s decision to increase his sentence by two levels under U.S.S.G. § 2K2.1(b)(1)(A). We consider whether the district court erred by enhancing Nungaray’s sentence based on its finding that he constructively possessed four firearms. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

I

On July 20, 2011, Nungaray pled guilty to one count of unlawful possession of a firearm in violation of 18 U.S.C. § 922 (g)(1). Although he pled guilty to only one count of unlawful firearm possession, at the sentencing hearing, the district court found by a preponderance of the evidence that Nungaray constructively possessed four other guns that he sold to an undercover officer. As a result, the court enhanced Nungaray’s sentence by two levels under U.S.S.G. § 2K2.1(b)(l)(A) for a total offense calculation of 23 with a criminal history score of VI, making the guideline sentencing range 92 to 115 months. The district court sentenced Nungaray to 92 months.

Nungaray sold firearms to undercover officer, Sergeant Martin Flores, in Boise, Idaho, on January 5, 2010! On January 4, 2010, a confidential informant told the FBI that…